Citation Nr: 21015261 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-37 330A DATE: March 17, 2021 ORDER Entitlement to a 20 percent initial rating for bilateral dry eye syndrome is granted; subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 20 percent for left upper extremity (major) radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for left thumb disability prior to July 8, 2020 is denied. Entitlement to a rating in excess of 20 percent for left thumb disability from July 8, 2020 is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s bilateral dry eye syndrome is manifested by symptoms comparable to a bilateral disorder of the lacrimal apparatus (epiphora, dacryocystitis, etc.). 2. Throughout the period on appeal, the Veteran’s left upper extremity (major) radiculopathy is manifested by mild incomplete paralysis. 3. Prior to July 8, 2020, the Veteran’s left thumb disability was manifested by painful motion, but not by a gap of more than 5.1 cm between the left thumb pad and the left fingers, with the thumb attempting to oppose the fingers. 4. From July 8, 2020, the Veteran’s left thumb disability is manifested by a gap of 6 cm between the thumb pad and the fingers, but not by favorable ankylosis of the left thumb and any left finger, or by a need for amputation of the left thumb. CONCLUSIONS OF LAW 1. The criteria for a 20 percent initial rating for bilateral dry eye syndrome are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.79, Diagnostic Code 6099-6025 (2019). 2. The criteria for an initial rating in excess of 20 percent for left upper extremity (major) radiculopathy are not met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.124a, Diagnostic Code 8510. 3. Prior to July 8, 2020, the criteria for an initial rating in excess of 10 percent for left thumb disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5228 (2019). 4. From July 8, 2020, the criteria for a rating in excess of 20 percent for left thumb disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code 5010-5228 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1972 to April 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in February 2018. A June 2017 rating decision assigned a 20 percent rating for left upper extremity radiculopathy from March 7, 2017. Thereafter, a September 16, 2020 rating decision granted an earlier effective date of May 1, 2006 as to the 20 percent rating for this disability. A September 2, 2020 rating decision granted a 10 percent rating for bilateral eye syndrome from May 1, 2006, a 10 percent rating for left thumb disability from May 1, 2006, and a 20 percent rating for left thumb disability from July 8, 2020. As the rating periods regarding the issues of left upper extremity radiculopathy, bilateral dry eye syndrome, and left thumb disability are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). In October 2010 correspondence, the Veteran informed VA that he wished to revoke the power of attorney of Texas Veterans Commission. As the Veteran has not appointed a new representative through a VA Form 21-22a, the Board concludes that the Veteran is unrepresented. Increased Ratings Disability ratings are determined by applying the criteria set forth in 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 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings 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 (2019). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for bilateral dry eye syndrome The Veteran seeks a higher rating for his service-connected bilateral dry eye syndrome, which is currently rated as 10 percent disabling under Diagnostic Code 6099-6018. Diagnostic Code 6099-6018 indicates that the Veteran’s bilateral dry eye syndrome is rated analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for chronic conjunctivitis (Diagnostic Code 6018). The Board acknowledges that dry eye syndrome is not a disorder specifically listed in the rating schedule and, therefore, it should be rated by analogy to a closely related disease or injury. 38 C.F.R. §§ 4.20, 4.27. Chronic conjunctivitis (Diagnostic Code 6018) and disorders of the lacrimal apparatus (Diagnostic Code 6025) have symptoms such as watering of the eyes, redness, and eye discharge, which most closely relate to the Veteran’s dry eye syndrome symptoms. Of the pertinent diagnostic codes, the Board finds that Diagnostic Code 6025 is most appropriate because the evidence indicates that the Veteran’s dry eye syndrome is pathologically related to impairment of the lacrimal apparatus. Accordingly, the Veteran’s bilateral dry eye syndrome will be rated under 38 C.F.R. § 4.79, Diagnostic Code 6099-6025, by analogy to a disorder of the lacrimal apparatus. 38 C.F.R. §§ 4.20, 4.27; Lendermann v. Principi, 3 Vet. App. 345 (1992). 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 for the eyes.  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 both the former and revised criteria, Diagnostic Code 6025 assigns a 10 percent rating for evidence of a disorder of the lacrimal apparatus affecting one eye, while a 20 percent rating is assigned for evidence of a disorder of the lacrimal apparatus affecting both eyes.  38 C.F.R. § 4.79.  The lacrimal apparatus is defined as “the system concerned with the secretion and circulation of tears and the normal fluid of the conjunctival sac; it consists of the lacrimal gland and ducts, and associated structures.”  See Dorland’s Medical Dictionary (30th Ed. 2003). Based on a review of the relevant evidence, the Board finds that a 20 percent initial rating is warranted for the Veteran’s bilateral dry eye syndrome. Specifically, the January 2006 VA examination, October 2013 Disability Benefits Questionnaire (DBQ), September 2018 DBQ, and August 2020 VA examination reflect that the Veteran regularly uses artificial tears to treat his bilateral eye symptoms of burning and dry eyes. Further, the October 2013 and September 2018 examiners noted that the Veteran’s bilateral dry eye syndrome is a disorder of the lacrimal apparatus. Here, the medical evidence of record for the entire period on appeal reflects that the Veteran’s bilateral dry eye syndrome is pathologically related to a dysfunction of the lacrimal apparatus. Diagnostic Code 6025 contemplates an eye disability involving “the secretion and circulation of tears and the normal fluid of the conjunctival sac,” and, here, the Veteran’s bilateral dry eye disability requires treatment with artificial tears.  As such, under Diagnostic Code 6099-6025, a 20 percent initial rating is warranted for a bilateral disorder of the lacrimal apparatus of the Veteran’s eyes.      The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing that the Veteran’s other diagnosed eye disorders, namely, bilateral cataracts and contraction of visual fields, are either attributable to visual impairment or related to the Veteran’s service-connected bilateral dry eye syndrome. The August 2020 examiner opined that the Veteran’s bilateral cataracts are due to the natural aging process. As to a finding of constricted visual fields during the August 2020 examination, the examiner opined that this type of visual impairment would likely be caused by glaucoma or a neurological issue, which were not found during the examination, rather than a corneal issue such as bilateral dry eye syndrome. As to the Veteran’s diagnosed bilateral blepharitis, the August 2020 examiner opined that this disorder occurs when the eyelids become inflamed and irritated, leading to meibomian gland irritation and dryness, which is already contemplated by Diagnostic Code 6025, disorders of the lacrimal apparatus. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, as the Board finds that a 20 percent initial rating is warranted for the Veteran’s bilateral dry eye syndrome under Diagnostic Code 6099-6025, the Veteran’s claim is granted. 2. Entitlement to an initial rating in excess of 20 percent for left upper extremity (major) radiculopathy The Veteran seeks a higher rating for his service-connected left upper extremity radiculopathy, which is currently rated as 20 percent disabling under Diagnostic Code 8510 (Paralysis of the upper radicular group (fifth and sixth cervicals)). 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. As an initial matter, ratings based on function impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major.  38 C.F.R. § 4.69. The medical evidence in this case reflects that the Veteran is left-hand dominant. Therefore, his left upper extremity will be considered as the major extremity. Under Diagnostic Code 8510, a 20 percent rating is assigned for evidence of mild incomplete paralysis of the upper radicular group of the major side. 38 C.F.R. § 4.124a. A 40 percent rating is assigned for evidence of moderate incomplete paralysis of the upper radicular group of the major side. Id. A 50 percent rating is assigned for evidence of severe incomplete paralysis of the upper radicular group of the major side. Id. A 70 percent maximum rating is assigned for evidence of complete paralysis of the upper radicular group of the major side, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. Id. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Based on a review of the relevant evidence, the Board finds that ratings in excess of 20 percent for left upper extremity (major) radiculopathy is not warranted for the entire period on appeal. The medical evidence of record reflects that, throughout the period on appeal, the Veteran’s left upper extremity (major) radiculopathy is manifested by symptoms associated with mild incomplete paralysis. Specifically, the February 2006 VA examination reflects functional impairment, with limited use of the left upper radicular group. While the March 2017 DBQ examiner found that there is moderate incomplete paralysis of the left upper radicular group based on moderate numbness in the left upper extremity, no muscle atrophy or trophic changes were found, nor did the Veteran experience any constant or intermittent pain or paresthesia as to his left upper extremity. Further, the July 2020 VA examination reflects moderate intermittent pain, mild paresthesia, and mild numbness in the left upper extremity, with decreased sensation to light touch testing. However, no muscle atrophy or trophic changes were found, and deep tendon reflexes in the left upper extremity were normal. The 2020 examiner concluded that the Veteran’s left upper extremity radiculopathy is manifested by mild incomplete paralysis. Here, the medical evidence of record, to include post-service treatment records, reflects that the Veteran's left upper extremity (major) radiculopathy is primarily manifested by mild to moderate intermittent to constant pain, mild paresthesias, mild to moderate numbness, and some decreased sensation in the left upper extremities. The Board also finds that the most probative evidence of record is against a finding that the Veteran's left upper extremity (major) radiculopathy is manifested by light touch sensation that is moderate in nature, any trophic changes, or any muscle atrophy. Therefore, the Board finds that the level of impairment associated with the Veteran's left upper extremity (major) radiculopathy is most analogous to mild incomplete paralysis of the left upper radicular group. As the Veteran's left side is his dominant side, the Board finds that the currently assigned 20 percent rating for left upper extremity (major) radiculopathy is appropriate, and a higher rating is not warranted. The Board acknowledges the Veteran's assertions that his left upper extremity (major) radiculopathy is more severe than the assigned disability rating reflects. The Board has considered the Veteran’s lay statements of record regarding his symptoms of pain, numbness, and paralysis associated with his left upper extremity radiculopathy, and their effect on his daily activities. The Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, in this case, the competent medical evidence offering specific specialized determinations relevant to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran's left upper extremity (major) radiculopathy. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, separate or higher ratings under a different Diagnostic Code are not warranted. In conclusion, as the Board finds that the preponderance of, the evidence is against the Veteran’s claim for an initial rating in excess of 20 percent for left upper extremity (major) radiculopathy under Diagnostic Code 8510, the claim must be denied.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial rating in excess of 10 percent for left thumb disability prior to July 8, 2020 4. Entitlement to a rating in excess of 20 percent for left thumb disability from July 8, 2020 The Veteran seeks higher ratings for his service-connected left thumb disability, which is currently rated as 10 percent disabling under Diagnostic Code 5010-5228 prior to July 8, 2020 and as 20 percent disabling under Diagnostic Code 5010-5228 from July 8, 2020. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Here, the Veteran’s left thumb disability is rated analogous to post-traumatic arthritis (Diagnostic Code 5010) under the criteria for limitation of motion of the thumb (Diagnostic Code 5201). 38 C.F.R. § 4.71a, Schedule of ratings – musculoskeletal system. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Code 5228 was not changed. Under Diagnostic Code 5228, rating levels for the thumb remain the same, whether the thumb is part of the dominant or non-dominant hand. A noncompensable rating is assigned for limitation of the thumb, with a gap of less than one inch (2.5 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a. A 10 percent rating is assigned for limitation of motion of the thumb, with a gap of one or two inches (2.5 to 5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Id. A maximum 20 percent rating is assigned for limitation of motion of the thumb with a gap of more than two inches (5.1 cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”).  Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.”  Period prior to July 8, 2020 Turning first to the period on appeal prior to July 8, 2020, upon review of the relevant evidence, the Board finds that a rating in excess of 10 percent for a left thumb disability is not warranted. Specifically, the medical evidence of record, to include the February 2006 and October 2016 VA examinations, reflects that a gap of no more than 1 cm exists between the left hand thumb pad and the left hand index. Further, the examinations show no evidence of ankylosis in any of the left hand fingers, nor is there any functional impairment such that no effective functions remain other than that which would be equally well served by an amputation of the left thumb with prosthesis. However, these examinations, as well as post-service treatment records, reflect reports of left thumb pain. Therefore, the 10 percent initial rating for left thumb disability assigned prior to July 8, 2020 for painful left thumb motion is appropriate, as this is the minimum compensable rating for the left thumb under Diagnostic Code 5010-5288. See 38 C.F.R. §§ 4.59, 4.71a; Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to July 8, 2020, the Board has considered whether a higher rating or an additional rating is warranted under an alternative diagnostic code. To warrant a higher rating under Diagnostic Code 5152, there must be evidence that no effective function remains other than that which would be equally well served by amputation of the left thumb. To warrant a higher rating under Diagnostic Code 5223, there must be evidence of favorable ankylosis of the left thumb and any other left hand finger. Here, the medical evidence of record prior to July 8, 2020 is silent for favorable ankylosis of any left hand finger or of a need for left thumb amputation. As such, a higher rating for the Veteran’s left thumb disability is not warranted prior to July 8, 2020. Period from July 8, 2020  From July 8, 2020, upon review of the relevant evidence, the Board finds that a rating in excess of 20 percent for a left thumb disability is not warranted. Specifically, the July 8, 2020 VA examination reflects that a gap of 6 cm exists between the left hand thumb pad and the other left hand fingers, which warrants a 20 percent rating under Diagnostic Code 5010-5228. However, the 2020 examination, as well as post-service treatment records, are silent for evidence of ankylosis in any of the left hand fingers or evidence that there is functional impairment such that no effective functions remain other than that which would be equally well served by an amputation of the left thumb with prosthesis. As such, the currently assigned 20 percent rating for left thumb disability under Diagnostic Code 5010-5228 is appropriate. The Board has considered whether a higher rating or an additional rating is warranted an alternative diagnostic code. To warrant a higher rating under Diagnostic Code 5152, there must be evidence that no effective function remains other than that which would be equally well served by amputation of the left thumb. To warrant a higher rating under Diagnostic Code 5223, there must be evidence of favorable ankylosis of the left thumb and any other left hand finger. Here, the medical evidence of record from July 8, 2020 to the present is silent for favorable ankylosis of any left hand finger or of a need for left thumb amputation. As such, a higher rating for the Veteran’s left thumb disability from July 8, 2020 is not warranted. In conclusion, as the Board finds that the preponderance of, the evidence is against the Veteran’s claims for an initial rating in excess of 10 percent for left thumb disability prior to July 8, 2020 under Diagnostic Code 5010-5228 and a rating in excess of 20 percent for left thumb disability from July 8, 2020 under Diagnostic Code 5010-5228, the claims must be denied.  In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, Counsel 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.