Citation Nr: 21011781 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 20-05 244 DATE: March 2, 2021 ORDER An initial 30 percent rating for keratoconus is granted. A separate 10 percent rating, but not more, for dry eye syndrome associated with keratoconus is granted. REMANDED A compensable rating for herpes simplex is remanded. (The issues of service connection for left knee disability, hay fever, sinusitis, and lung condition; increased initial ratings for right foot plantar fasciitis and PTSD; and a total disability rating based on individual unemployability due to service-connected disability (TDIU) are addressed in a separate rating decision). FINDING OF FACT The Veteran’s keratoconus with dry eye syndrome necessitates contact lens wear and manifests as blurred vision, pain, irritation, itching, burning, dry eyes, and impaired visual acuity not worse than 20/70 in both eyes. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent rating, but not more, for keratoconus have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Codes 6035-6066. 2. The criteria for a separate 10 percent rating, but not more, for dry eye syndrome associated with keratoconus have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79 Diagnostic Codes 6018. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1996 to September 2000 and from February 2003 to October 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This rating decision granted service connection for herpes simplex and keratoconus. The Veteran appealed these initial ratings with a July 2016 notice of disagreement. The RO issued a statement of the case in January 2020 and the Veteran perfected her appeal with a VA Form 9 later that month. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in October 2020. A transcript of the hearing is associated with the claims file. 1. A compensable initial rating for keratoconus The Veteran was originally granted service connection for keratoconus in a March 2016 rating decision. At that time, this disability was rated noncompensable (0 percent) effective October 14, 2003. During the pendency of this appeal, the Veteran’s dry eye syndrome has been found to be causally related to her keratoconus. As this is part of her overall disability picture for her eyes, the Board will address its symptoms as well. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran’s keratoconus is rated under diagnostic code (DC) 6035. Dry eye syndrome is not a condition specifically listed in the rating schedule, so it should be rated by analogy to a closely related disease or injury. See 38 C.F.R. § 4.20. It is permissible to rate under a closely rated disease or injury in which the functions affected, anatomical location, and symptomatology are closely analogous. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In this instance, DCs 6000-6091 relate to disabilities of the eye and, therefore, have an analogous anatomical location. As detailed below, the Veteran’s dry eye syndrome symptoms include subjective complaints of pain, irritation, itching, burning, and dry eyes. These symptoms are largely similar to conjunctivitis and so the Board has considered whether an additional rating is warranted under DC 6018 (chronic conjunctivitis). 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 January 2004 claim, Diagnostic Code (DC) 6035 instructed the rater to evaluate keratoconus based on impairment of corrected visual acuity (38 C.F.R. §§ 4.83, 4.83a (2003)) using contact lenses (38 C.F.R. §§ 4.75 (2003)), noting that when contact lenses are medically requires, either unilateral or bilateral, a minimum 30 percent rating is warranted. See 38 C.F.R. § 4.84a (2003). Under the former criteria in effect at the time of the Veteran’s January 2004 claim, Diagnostic Code (DC) 6018 active conjunctivitis was rated 10 percent and inactive conjunctivitis was rated on residuals or, if healed without residuals, rated 0 percent. See 38 C.F.R. § 4.84a (2003). Under the revised criteria, DC 6035 is rated under the General Rating Formula for Diseases of the Eye. 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. Under the revised criteria, DC 6018 active conjunctivitis is rated under the General Rating Formula with a minimum rating of 10 percent and inactive conjunctivitis is rated based on residuals such as visual impairment or disfigurement. 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. A November 2004 private treatment record noted right eye keratoconus. With hard contact lenses, the Veteran’s corrected visual acuity was 20/20 bilaterally. A May 2019 eye conditions DBQ diagnosed bilateral keratoconus and bilateral dry eye syndrome. She reported current symptoms of blurred vision, pain, irritation, itching, burning, and dry eyes. Here treatment included medicated eye drops and gel, antihistamines, and contact lens wear. Her uncorrected distance and near vision were both 5/200 or worse bilaterally, all corrected to 20/70. Her pupils were round and reactive to light. She did not have an afferent pupillary defect. She did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. She had a corneal irregularity that resulted in severe astigmatism and customarily wore contact lenses to correct it. Contact lenses resulted in more visual improvement that standard spectacles. The above corrected vision was determined while wearing contact lenses, but the examiner noted that this was not her most recent pair as she reported discomfort and fogging up of her current contacts. She did not have diplopia. Externally, she had keratoconus, punctal plugs, and moderate punctate staining bilaterally. Internal eye exam results were normal. She did not have a documented visual field defect. The Veteran had bilateral dry eye syndrome that had not been treated with any elective procedures, but was treated with prescription medications, over-the-counter eye drops, and plugs to block tear ducts. Her bilateral dry eye syndrome did not cause her decreased visual acuity. Instead, her bilateral keratoconus caused her decreased visual acuity. She did not have any scarring or disfigurement attributable to an eye condition. In the prior twelve months, she had not had any incapacitating episodes attributable to an eye condition. Functionally, her decreased visual acuity made it difficult to perform fine vision tasks like reading fine print. Her dry eye syndrome was more symptomatic in dry environments with air blowing or fans. This examiner noted that the Veteran’s keratoconus required contact lens wear. Additionally, this examiner found that the Veteran’s dry eye syndrome was caused by her keratoconus and subsequent contact lens wear. VA treatment records show complaints of dry eyes and impaired visual acuity to no worse than 20/40 in the right eye and 20/60 in the left eye, but not impaired visual fields, impaired muscle function, or incapacitating episodes. She had ongoing difficulty with ill-fitting contact lenses. In November 2019, the Veteran reported burning dry eyes during an upper respiratory infection that persisted after the infection had resolved. Inspection of contact lenses revealed debris that remained after cleaning. Her left punctal plugs were replaced. During her October 2020 hearing, the Veteran reported visual difficulty working on the computer and driving. She had to switch computers and use a larger keyboard. She also reported scarring on her eyes. She could not read street signs while driving. Private treatment records also show keratoconus that required contact lens wear and correctable impairment of visual acuity. In an October 2020 statement, the Veteran’s private doctor also noted that the Veteran’s dry eye syndrome was caused by her keratoconus and subsequent contact lens wear. Based on the above, the Board finds that the Veteran’s keratoconus requires her to wear contact lens. As such, she is entitled to the minimum 30 percent rating for keratoconus that was in effect under the former rating criteria and to that extent, her appeal is granted. See 38 C.F.R. § 4.84a (2003). The Board has also considered whether a higher rating is warranted based on visual impairment or incapacitating episodes. Here, the Veteran’s corrected visual acuity has been 20/70 or better for both eyes. The Board notes that the May 2019 DBQ that recorded this impairment also noted that the Veteran was not using her most recent contact prescription due to fit issues, which could suggest that her best corrected vision would be better. Regardless, even if the best corrected visual acuity in both eyes was 20/70, as reflected in that DBQ, this would only warrant a 30 percent rating, which is equal to the minimum rating already being awarded. 38 C.F.R. § 4.84a (2007); 38 C.F.R. §§ 4.76, 4.79 (2020). There is no evidence of impaired visual field, impaired muscle function, or incapacitating episodes; thus, a higher rating based on these factors is not available. Therefore, a 30 percent rating, but not higher, for keratoconus with dry eye syndrome is granted. The Board has also considered whether a separate compensable rating is warranted for the Veteran’s dry eye syndrome. Again, her symptoms include subjective complaints of pain, irritation, itching, burning, and dry eyes. Under both versions of DC 6018, a 10 percent rating is warranted for active conjunctivitis. The current version of DC 6018 provides for higher ratings based on visual impairment and/or incapacitating episodes, which has already been contemplated by the keratoconus rating. As such, a separate 10 percent rating, but not more, is warranted for the Veteran’s dry eye syndrome. REASONS FOR REMAND 1. A compensable initial rating for herpes simplex is remanded. The record shows that the Veteran’s herpes simplex (cold sores) manifests as recurring cold sores on her lip, which she treated with constant oral antiviral medication. The medical evidence does not clarify whether this antiviral medication is a systemic therapy within the meaning of the rating criteria. Likewise, there is no finding as to the percentage of the exposed area affected by these recurring outbreaks of cold sores on her lip. As the rating criteria is based on either systemic therapy or percentage of the body/exposed area affected, specific medical findings are required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s oral antiviral medication is a systemic therapy. Also, provide a percentage of the entire body and exposed area affected by this disability. The examiner should interview the Veteran for a description of the frequency, severity, duration and areas affected, and may comment as to whether there is any medical reason to accept or reject her contention that she is describing recurrent episodes of herpes simplex. (continued on the next page) 2. Finally, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, then furnish the Veteran and her agent with a supplemental statement of the case and allow them an opportunity to respond. T. MAINELLI 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.