Citation Nr: 21023024 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-10 298 DATE: April 19, 2021 ORDER Entitlement to a rating higher than 10 percent prior to September 24, 2015, for right eye dacryocystitis is denied. Entitlement to a rating higher than 20 percent as of September 24, 2015, for bilateral dacryocystitis is denied. Entitlement to a separate 10 percent rating, but not higher, as of August 26, 2013, but not earlier, for right eye swelling is granted. REMANDED Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 24, 2015, the Veteran’s right eye disability manifested visual acuity of 20/40, at worst; with itching, discharge, bleeding, and eye pain. 2. As of September 24, 2015, the Veteran’s bilateral eye disability manifested visual acuity of 20/40, at worst; with itching, discharge, bleeding, and eye pain. 3. As of August 26, 2013, the Veteran’s right eye disability manifested swelling. CONCLUSIONS OF LAW 1. Prior to September 24, 2015, the criteria for a disability rating higher than 10 percent for unilateral dacryocystitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.76, 4.79, Diagnostic Code 6025. 2. As of September 24, 2015, the criteria for a disability rating higher than 20 percent for bilateral dacryocystitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75, 4.76, 4.79, Diagnostic Code 6025. 3. As of August 26, 2013, the criteria for a separate rating of 10 percent for right eye swelling are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 6019. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 through August 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and December 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In October 2019 and October 2020, the Board remanded the appeal for additional development. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 10 percent prior to September 24, 2015, for right eye dacryocystitis 2. Entitlement to a rating higher than 20 percent as of September 24, 2015, for bilateral dacryocystitis The Veteran’s dacryocystitis is rated 10 percent prior to September 24, 2015, and 20 percent as of September 24, 2015, once service connection for the left eye was granted. Under Diagnostic Code 6025, disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.), a 10 percent rating is warranted for unilateral involvement, and a 20 percent rating is warranted for bilateral involvement. 38 C.F.R. § 4.79, Diagnostic Code 6025. 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. 83 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. There was no amendment to Diagnostic Code 6025. The rating 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 rating 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 rated separately, and then combined under the provisions of 38 C.F.R. § 4.25. The rating 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 rating 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, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. The General Rating Formal for Diseases of the Eye instructs to rate on the basis of either visual impairment or incapacitating episodes, whichever results in a higher rating. Where there are documented incapacitating episodes requiring at least one but less than three 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 three but less than five 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 five but less than seven treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring seven or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. VA treatment records show continued treatment for eye pain, drainage issues, soreness, and swelling. The Veteran had surgery on the right eye in October 2016, but pulled the tube out within a week of the surgery. At an October 2015 VA examination, the Veteran reported that she wakes with her eyes crusted shut and that they constantly water. She could express mucous out of the right eye puncta. Corrected distance measured 20/40 bilaterally. Slit lamp testing showed slight external erythema on the right eye, and possible slight erythema on the left eye. The examiner noted dacryocystitis on the right side that did not cause scarring or disfigurement. Although the left eye had a slight edema on examination, a diagnosis for left eye dacryocystitis could not be ruled out, especially in light of the Veteran’s reported history. There was no visual field defect or incapacitating episodes. At the January 2020 VA examination, the Veteran reported using antibiotics at least once a week. Corrected distance measured 20/40 bilaterally. Slit lamp testing showed a reflux of tears pressing on the canalicular area of the right eye. The examiner noted dacryocystitis on the right side did not cause any decrease in visual acuity or other visual impairment. Further, any decrease in visual acuity was secondary to the nonservice-connected cataracts. There was no evidence of dacryocystitis in the left eye. At the December 2020 VA examination, the examiner diagnosed chronic dacryocystitis of the right eye. Corrected distance measured 20/40 bilaterally. Slit lamp testing showed some pustular material on palpation of the lacrimal sac in the right eye and the left eye was normal with no swelling or discharge. The examiner noted any decrease in visual acuity was secondary to the nonservice-connected cataracts. There was no visual field defect or incapacitating episodes. As for the Veteran’s reported symptoms of swelling, itching, bleeding, and eye pain, the December 2020 examiner explained they were related to the service-connected dacryocystitis, which is the inflammation of the lacrimal sac. Pain, irritation, and swelling were noted side effects. The Veteran experienced swelling of the lacrimal sac because there was an obstruction of outflow of her tears. The discharge was a result of the tears becoming infected and pustular. Bleeding can occur either spontaneously or on applying pressure to the lacrimal sac. The eye pain was due to swelling of the lacrimal sac. In reviewing the record, the Board finds that increased ratings for dacryocystitis are not warranted. Prior to September 24, 2015, the Veteran was service connected for the right eye. The medical evidence indicated that the disability manifested with discharge, swelling, itching, bleeding, and pain. There was no decrease in visual acuity. Because the Veteran had unilateral involvement, a 10 percent rating is warranted. As there was no decrease in visual acuity or other visual impairment, or any incapacitating episodes, there is no indication a higher rating is warranted. Thus, the record does not show that a higher rating is warranted. As of September 24, 2015, the Veteran was service-connected for bilateral dacryocystitis, and in receipt of the highest possible schedular rating. Significantly, the bilateral eye disability has not been shown to manifest in decreased visual acuity or other visual impairment, or to involve any incapacitating episodes. As the Veteran is assigned the highest schedular rating under Diagnostic Code 6025, a higher rating is not available under this code. In addition, the Board finds that the evidence does not demonstrate manifestations of service-connected disability that meet or more nearly appropriate the criteria for a higher rating under any other potentially applicable diagnostic code. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted for the right eye dacryocystitis prior to September 24, 2015, and a rating higher than 20 percent as of September 24, 2015, for bilateral dacryocystitis. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a separate 10 percent rating, but not higher, as of August 26, 2013, but not earlier, for right eye swelling Given the additional symptomatology reported, the Board notes that it has also considered whether an increased rating based on extraschedular consideration is warranted. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” Morgan, 31 Vet. App. at 167. Pursuant to Morgan v. Wilkie, 31 Vet. App. 162, it is essential to the rate, on a schedular basis, all of the manifestations of the Veteran’s service-connected eye disability. The evidence shows right eye swelling is an additional symptom attributable to the Veteran’s bilateral eye disability. Specifically, the eye disability is manifested with swelling that caused asymmetry. This symptom is not contemplated in the diagnostic code for dacryocystitis. However, the schedular contains codes that rate this symptom. The Board finds the Veteran’s right eye swelling can be rated by analogy to ptosis, eye drooping, based on disfigurement. Under Diagnostic Code 6019, ptosis is rated based on visual impairment or, in the absence of visual impairment, on disfigurement (Diagnostic Code 7800). Diagnostic Code 7800 applies to scars and disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. The Veteran’s right eye disability is manifested with eye swelling that caused asymmetry of one feature or paired set of features. Dacryocystitis is an inflammation of the lacrimal sac. The December 2020 VA examiner noted that the Veteran experienced swelling of the lacrimal sac because there was an obstruction of outflow of her tears. Although the swelling is attributable to the dacryocystitis, this side effect caused asymmetry. A 10 percent rating is warranted because the eyes are one paired set of features. As the record does not show gross distortion or asymmetry of two features or paired sets of features, a higher rating is not warranted. Based on the evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that assignment of a separate 10 percent rating for assymetry of paired set of features is warranted for the appeal period. Accordingly, the Board finds that a 10 percent, but not higher is warranted, as of August 26, 2013, but not earlier, for right eye swelling. REASONS FOR REMAND 1. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. In an August 2018 VA treatment record, the Veteran reported that she had been unemployed since 2016 due to medical problems and surgeries for her eye. The Board finds a claim for TDIU has been raised by the record. The Court has held that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Send the Veteran proper notice that advises her about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.