Citation Nr: 21006214 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-51 436 DATE: February 3, 2021 ORDER A higher (compensable) rating for dry eye syndrome is denied. FINDING OF FACT The Veteran’s dry eye syndrome has manifested in no more than occasional irritation during the appeal period. CONCLUSION OF LAW The criteria for a compensable rating for dry eye syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6099-6001. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to November 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a hearing before the undersigned. A transcript of that hearing is of record. The Board remanded the claim in August 2019 for further development. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that the symptoms of service-connected dry eye syndrome (hereinafter “eye disability”) warrants a compensable rating. The Veteran’s eye disability has been assigned a 0 percent rating as of December 29, 2011, under DC 6099-6001, rating the disability by analogy to keratopathy. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under the former criteria, DC 6001 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Under the revised criteria, DC 6001 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formal for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. The Board notes there is no evidence that the Veteran has impairment of visual field. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. At a July 2013 VA examination, the Veteran reported he used artificial tears for his dry eye syndrome. He also stated that symptoms increased in hot, dry, windy, or dusty conditions. The examiner diagnosed dry eye syndrome and cataracts. In the VA examination report, however, the examiner noted the only eye condition to be cataracts. On examination, corrected distance vision was 20/40 or better in both eyes. There was no evidence of a visual field defect. Slit lamp examination was normal except for the presence of nuclear sclerosis on the lens (cataracts). Internal examination was also normal. There was no evidence of scarring or disfigurement, or of any incapacitating episodes due to eye conditions. At a September 2017 VA examination, the examiner found no evidence of dry eye syndrome. On examination, the examiner found adequate tear production, no corneal straining and no conjunctival injection seen. Corrected distance vision was 20/40 or better in both eyes. There was no evidence of scarring or disfigurement, or of any incapacitating episodes due to any eye conditions. At a January 2020 VA examination, the Veteran reported he no longer used artificial tears but instead used Patanol eye drops for allergies. He stated that his eyes felt irritated. On examination, corrected distance vision was 20/40 or better in both eyes. Slit lamp and internal examination were both normal. There was no evidence of visual field defect, scarring or disfigurement, or of incapacitating episodes due to any eye conditions. The examiner found that there was no eye condition present. Specifically, the examiner stated that the examination failed to provide support for a chronic eye condition. He noted that the Veteran was prescribed eyedrops typically given for allergy symptoms. The examiner further noted that the last eye examination in November 2019 did not provide any positive findings to support dry eyes. VA medical records are consistent with VA examination reports, indicating some findings of eye irritation or itching but no evidence of chronic symptoms warranting a compensable rating. In July 2012, the Veteran reported tearing and itching. In January 2018, the provider noted seasonal allergies and bilateral dry eyes managed with Patanol eye drops. The provider stated that mild seasonal allergies were reviewed with the Veteran. The record shows that the Veteran used artificial tears prior to Patanol eye drops. The Veteran’s corrected distance vision was consistently 20/40 or better throughout the appeal period. After review of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s service-connected eye disability has manifested in compensable symptoms. The Board notes that both VA examiners after the initial July 2013 examination did not find that the Veteran had a diagnosable eye condition such as dry eye syndrome. Neither examiner found any evidence of dry eye syndrome or any other chronic eye condition. VA medical records indicate that the Veteran had allergies, however, do not show that the Veteran had more than occasional irritation or itching from dry eyes. Visual acuity has remained normal throughout the appeal period. While the Board acknowledges the Veteran’s reports of eye irritation and regular eye drop use, these statements do constitute incapacitating episodes supporting a higher rating under the rating criteria. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran’s service-connected eye disability. Therefore, the claim for increased rating must be denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.