Citation Nr: 21007263 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-34 945 DATE: February 9, 2021 ORDER An initial rating higher than 10 percent for left eye disability is denied. FINDING OF FACT The Veteran’s left eye disability manifests as subjective complaints of watery eyes and photophobia, but no visual impairment or incapacitating episodes. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for left eye disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.83-4.84a, Diagnostic Code 6066 (2008); 38 C.F.R. §§ 3.321, 4.1, 4.14, 4.75-4.79, Diagnostic Code 6066 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to May 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for glaucoma, residual of left eye injury and status post headaches. The Veteran appealed the initial ratings assign with a notice of disagreement later that month. In June 2013 the RO issued a statement of the case and the Veteran perfected his appeal with a June 2013 VA Form 9. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in March 2014. A transcript of the hearing is associated with the claims file. In October 2014, the Board remanded this case for further development. In a January 2015 decision, the Board granted a partial staged increase for the headache claim and remanded the left eye disability for further development. The Board adjudicated this appeal in a July 2015 decision, denying an increased initial rating for left eye disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2017 memorandum decision, the Court vacated the July 2015 Board decision and remanded the claim to the Board. In September 2017 and October 2020, the Board remanded this case for further development. 1. A rating higher than 10 percent for left eye disability The Veteran was originally granted service connection for a left eye disability in a March 2012 Board decision, which was effectuated by the April 2012 rating decision on appeal. At that time, the Veteran’s glaucoma, residual of left eye injury, was rated 10 percent effective February 29, 2008. The Veteran has appealed this initial rating. During the pendency of the appeal, the regulations governing eye disability ratings have been changed twice. First, the criteria for the evaluation of disabilities of the eyes were amended effective December 10, 2008, but these amended criteria govern cases only when the claim is filed on or after that date. See 73 Fed. Reg. 66543 (November 10, 2008). As the instant claim was filed prior to December 10, 2008, the rating criteria revised effective December 10, 2008, are not applicable. More recently, 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. 15,316 (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 in effect at the time of the Veteran’s February 2008 claim, eye disabilities were rated based on impairment of visual acuity (38 C.F.R. §§ 4.83, 4.83a (2008)), impaired muscle function (38 C.F.R. § 4.84a, DC 6090 (2008)), or field loss (38 C.F.R. § 4.84a (2008)). See 38 C.F.R. § 4.84a (2008). Under the revised criteria, the General Rating Formula 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. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Although the organization of the rating criteria has changed somewhat, the underlying criteria for visual impairment, including impairments of visual acuity, visual fields, and/or muscle function, have remained unchanged. Impaired visual acuity is rated based on the best corrected distance vision. 38 C.F.R. § 4.84a (2007); 38 C.F.R. §§ 4.76, 4.79 (2020). Impairment of visual fields are rated based on the average concentric contraction of the visual field of each eye; asymmetric impairments are converted to their visual acuity equivalents. 38 C.F.R. § 4.84a (2007); 38 C.F.R. §§ 4.77, 4.79 (2020). Impaired muscle function is rated under DC 6090-6091 with an evaluation for diplopia being assigned to only one eye. 338 C.F.R. § 4.84a (2007); 38 C.F.R. §§ 4.78, 4.79. When only one eye is service connected, the other eye is considered 20/40 for rating purposes regardless of the actual level of impairment. 38 C.F.R. § 4.75 (c). Here, the Veteran is only service connected for a left eye disability. He has sought service connection for a right eye disability and has thus far been unsuccessful. The Board notes that the Veteran is still appealing this in a separate appeal stream. If he is successful with that appeal, a new rating for bilateral eye disabilities will be assigned at that time. In his lay statements, the Veteran has reported left eye watering, particularly during headaches; blurriness; and photophobia. A November 2008 VA treatment record shows complaints of blurry vision at distance, frequent headaches on left side of face and periorbital area. His vision acuity was correctable to 20/20 bilaterally. He was diagnosed with refractive error and chronic headaches/left periorbital pain. At the time of his October 2009 VA eye examination, the Veteran complaints of headaches, eye watering, and occasional itchy eyes. His uncorrected vision was 20/60 in the right eye and 20/70 in the left eye, both correctable to 20/20. Motility was normal and confrontational fields were full to finger count bilaterally. His pupils were equal and reactive to light and accommodation. There was no afferent pupillary defect. Physical examination found bilateral conjunctive papillae and everted upper eyelids. His diagnoses included myopia astigmatism, presbyopia, allergic conjunctivitis, and suspected glaucoma. He was HIV positive, but did not have associated retinopathy. A June 2010 VA neurology consult noted that the Veteran’s headaches began in the left temple and occasionally with eye watering. He did not have photophobia unless he was in extreme sun. Physical examination found the Veteran’s extraocular eye movements intact, but the neurologist suspected that the left eye was lower than the right. The Veteran did not have diplopia. His pupils were equal, round, and reactive to light. VA treatment records from 2011 show that the Veteran reported headaches with photophobia and left eye watering. At his February 2012 Board hearing for the underlying service connection claim, the Veteran testified that his eyes water every morning. He had blurry vision even with glasses. He had migraines multiple time a week that necessitated him closing himself in a room with the lights off. The June 2012 eye conditions disability benefits questionnaire (DBQ) notes the Veteran’s complaint of eye watering all the time. His corrected visual acuity was 20/20 bilaterally. He had full motility in both eyes. His confrontational fields were full to finger count bilaterally with fast response. There was no afferent pupillary defect. Physical examination found meibomian gland dysfunction and depleted tear film bilaterally. He was diagnosed with presbyopia (refractive error); primary open angle glaucoma on left only based on previous findings; and mild dry eyes. The examiner found no evidence of visual loss in the left eye. The concurrent neurology DBQ reported sensitivity to light among the Veteran’s non-headache symptoms associated with headaches. An August 2012 VA treatment record nots left eye primary open angle glaucoma based on cup-to-disc ratio. A November 2013 VA treatment record found the Veteran’s visual acuity with his current eyeglasses was 20/25 in the right eye and 20/40 in the left eye. A new prescription was issued. His extraocular movements were unrestricted and there was no associated pain. His confrontational visual fields were full in the four diagonal meridians bilaterally. His pupils were reactive and round. There was no pupillary defect. The Veteran’s diagnoses included HIV positive without ocular manifestations, optic nerve hypoplasia, high triglycerides with no retinal plaque or emboli, and refractive error. At his March 2014 Board hearing, the Veteran testified that his eyes watered “real bad” in the morning. He had blurry vision and eye drops did not help. He also reported light sensitivity within the context of his prostrating migraines. His mother testified that he had a twitch in his left eye and wore glasses that turned dark in the sunlight. A December 2014 VA neurology note describes photophobia as one of the Veteran’s headache symptoms. The April 2015 eye DBQ found bilateral nuclear sclerotic cataracts and HIV positive with no ophthalmic manifestations. His uncorrected distance vision was 20/100 bilaterally and his uncorrected near vision was 20/50 bilaterally, all corrected to 20/40 or better. His pupils were round and reactive to light. There was no affected pupillary defect. He did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He did not have diplopia. He had trace nuclear sclerotic cataracts bilaterally, but his external eye exam was otherwise normal. Internal eye exam was normal bilaterally. He did not have a visual field defect. He had bilateral preoperative cataracts, but these did not result in visual impairment as no decreased visual acuity or other visual impairment was shown. The Veteran did not have any other eye conditions, pertinent physical findings, complications, conditions, signs and/or symptoms related to the condition at hand. He did not have scarring or disfigurement attributable to any eye condition. He had not had any incapacitating events in the prior twelve-months attributable to any eye condition. This did not impact his ability to work. This examiner found that the Veteran had no scars or conditions affecting his left eye or vision form his in-service injury. A July 2015 VA eye examination consult found that the Veteran currently had no scars or conditions affecting his left eye or vision from injury during service. Neither his anatomy and function of his left eye, nor his vision had been compromised or affecting his daily activities. A March 2016 VA treatment record shows complaints of moderately blurry vision with current eyeglasses. His uncorrected visual acuity was 20/60 bilaterally; with his current eyeglasses, it was 20/30 in the right and 20/50 in the left. His extraocular movements were unrestricted and there was no associated pain. His confrontational visual fields were full in the four diagonal meridians bilaterally. His pupils were reactive and there was no afferent pupillary defect. The Veteran’s diagnoses included HIV positive without ocular manifestations, chronic dry eyes, not visually significant cataracts, and refractive error. This optometrist also noted that the Veteran appeared to be malingering. Specifically, his responses were inconsistent (shown same lens prescription at different times with acuity being different each time), he read the second line of the Snellen chart regardless of size and reported he was unable to read the third or fourth line, when examiner stated that the Veteran had read a line earlier the Veteran cited confusion and read it effortlessly, and his unaided visual acuity was inconsistent with mechanical refractions, reported that significantly different lenses looked “the same.” Finally, the Veteran’s photophobia was inconsistent as he flinched and complained of photophobia a lot at the beginning of the exam, but was not bothered by slit lamp testing, despite fairly high intensity, towards the end of the exam. As such, the Veteran’s reports of photophobia at the time of this treatment record are not credible. A June 2016 VA neurology note describes photophobia as one of the Veteran’s headache symptoms. A March 2017 VA neurology note describes photophobia as one of the Veteran’s headache symptoms. The December 2017 DBQ medical opinion found that the Veteran’s watery eyes and light sensitivity were less likely than not proximately due to or the result of his service-connected condition. Instead, these symptoms were most likely from his migraines as there were no ocular conditions present that would cause him to be light sensitive. At the time of his in-service injury he only had a subconjunctival hemorrhage which has resolved. There was no evidence of glaucoma occurring from this injury. A March 2018 VA treatment record notes the Veteran’s reports of watery eyes, particularly in the morning. He was using NPATs, but had not tried allergy drops. His vision was stable, and he had no other concerns. His corrected distance vision was 20/25-1 in the right eye and 20/25 in the left eye. His pupils were round and reactive to light and accomodation. His extraocular movements were unrestricted. His confrontational visual fields were full bilaterally. The Veteran’s diagnoses included well-controlled HIV without retinopathy, epiphora/itching without papillae on exam, not visually significant cataracts bilaterally, moderate cupping, and refractive error. A July 2019 VA treatment record notes good vision with glasses. The Veteran needed an updated prescription for allergy and dry eye drops. He denied eye pain, flashes, floaters, and diplopia. His corrected visual acuity through phoropter was 20/25-1 bilaterally. His pupils were round and reactive to light and accomodation. There was no afferent pupillary defect. His extraocular movements were unrestricted. His confrontational visual fields were full bilaterally. The Veteran’s diagnoses included HIV positive without retinopathy, primary open angle glaucoma, dry eye syndrome with ocular allergies, and refractive error. A September 2019 VA eye DBQ noted that the Veteran’s uncorrected distance vision was 20/40 bilaterally and his uncorrected near vision was 20/50 bilaterally, all corrected to 20/20 or better. His pupils were round and reactive to light. There was no afferent pupillary defect. He did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He did not have diplopia. He had corneal dryness bilaterally, but his external eye exam was otherwise normal. Internal eye exam was normal bilaterally. He did not have a visual field defect. The Veteran did not have any other eye conditions, pertinent physical findings, complications, conditions, signs and/or symptoms related to the condition at hand. He did not have scarring or disfigurement attributable to any eye condition. He had not had any incapacitating events in the prior twelve-months attributable to any eye condition. This did not impact his ability to work. The January 2020 VA eye DBQ diagnosed bilateral nuclear sclerotic cataracts and subjective epiphora. His uncorrected distance vision was 20/70 in the right eye and 20/100 in the left eye, both were correctable to 20/40. His uncorrected near vision was 20/40 bilaterally, both were correctable to 20/20 or better. His pupils were round and reactive to light. There was no affected pupillary defect. He did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. He did not have a corneal irregularity that resulted in severe astigmatism. He did not have diplopia. He had a conjunctival cyst on the left eye and bilateral .5 mm cup-to-disc, but his external and internal eye exams were otherwise normal. He did not have a visual field defect. The Veteran had bilateral preoperative cataracts without aphakia or dislocation of the crystalline lens, but this did not result in decreased visual acuity or other visual impairment because none was shown. The Veteran did not have any other eye conditions, pertinent physical findings, complications, conditions, signs and/or symptoms related to the condition at hand. He did not have scarring or disfigurement attributable to any eye condition. He had not had any incapacitating events in the prior twelve-months attributable to any eye condition. This did not impact his ability to work. Despite his subjective complaints, no objective evidence of epiphora (eye watering) was found on examination. There was no evidence of any cornea or other ocular injury present on this examination. The cup to disc was 0.5mm, but the Veteran has large optic nerves, so the examiner felt that this size was probably normal for his optic disc. The examiner found that the noted conjunctival cyst does not warrant a separate diagnosis. An October 2020 VA treatment record notes the Veteran’s complaints of watery eyes and trouble seeing with his glasses. A November 2020 VA treatment record notes no significant changes to vision or other ocular symptoms/concerns. The Veteran denied eye pain, flashes, floaters, and diplopia. His corrected visual acuity through phoropter was 20/30+1 in the right eye and 20/20 in the left. His pupils were round and reactive to light and accomodation. There was no afferent pupillary defect. His extraocular movements were unrestricted. His confrontational visual fields were full bilaterally. The Veteran’s diagnoses included HIV positive without ocular manifestations, primary open angle glaucoma, chronic dry eyes, and refractive error. Based on the above, the Veteran’s left eye disability is not shown to result in any visual impairment or to have resulted in any incapacitating episodes. This is consistent with a noncompensable (0 percent) rating under DC 6066. See 38 C.F.R. § 4.79. To the extent that the April 2012 rating decision assigned a 10 percent rating based on impaired visual acuity, it did so incorrectly as it apparently relied on the Veteran’s uncorrected visual acuity at the time of his October 2009 DBQ and not the best corrected vision (in that case 20/20 with manifest refraction) as stated in the rating criteria. See 38 C.F.R. § 4.76(b)(1). The Veteran also reports subjective symptoms of watery eyes or epiphora and photophobia. Epiphora has not been confirmed by objective findings. Nonetheless, under both versions of DC 6025, unilateral epiphora warrants a 10 percent rating. See 38 C.F.R. § 4.84a (2008); 38 C.F.R. § 4.79 (2020). With regard to his reported symptom of photophobia, the Board notes that the Veteran is also service connected for headaches based on the same in-service injury. That disability is currently rated 0 percent effective November 18, 2008, 30 percent effective June 22, 2012, and 50 percent effective March 24, 2020 based on the frequency of characteristic prostrating attacks. See 38 C.F.R. § 4.124a, DC 8100. As described above, the Veteran’s photophobia has been repeatedly associated, in both the treatment records and the examinations, with his headaches. Moreover, in describing his headaches during neurology appointments, the Veteran repeatedly reports photophobia and phonophobia among his symptoms that lead him to go lie down, thereby suggesting that it is in part his photophobia during these headaches that elevates them to prostrating attacks. As such, his staged ratings for headaches encompass his photophobia and this symptom cannot also be used as a basis for a higher rating for his left eye disability. See 38 C.F.R. § 4.14 (prohibiting evaluation of the same disability under various diagnoses or pyramiding). Thus, the Veteran’s left eye disability manifests as subjective complaints of watery left eye, but no compensable visual impairment and no incapacitating episodes. As such, a rating higher than the current 10 percent is not warranted for the Veteran’s left eye disability. The issue of consideration of an extraschedular rating was raised by the Veteran’s attorney. See October 2019 correspondence. Specifically, the Veteran has reported additional symptoms of watery eyes and photophobia. These symptoms are addressed above. With regard to his watery eye, the Board has considered whether a higher rating is warranted under DC 6025. With regard to his photophobia, the Board finds that this symptom is associated with the Veteran’s separately service-connected headaches and has been considered under DC 8100 as part and parcel of his incapacitating episodes. As such, these symptoms are contemplated by the rating schedule and are not so “exceptional” or “unusual” as to warrant extraschedular consideration. See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.