Citation Nr: 21042121 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 06-14 421A DATE: July 12, 2021 ORDER Entitlement to an initial rating higher than 10 percent for tinnitus has been withdrawn. Entitlement to a separate 20 percent rating for bilateral chronic dry eyes is granted. REMANDED Entitlement to an initial rating higher than 10 percent for right wrist carpal tunnel syndrome is remanded. Entitlement to an initial rating higher than 10 percent for bilateral meibomian gland blepharitis is remanded. Entitlement to an initial rating higher than 10 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to promulgation of a decision in the appeal, the Veteran testified at a March 2021 Board hearing that he would like to withdraw his claim for an increased rating for tinnitus. 2. Throughout the appeal period, the Veteran experienced bilateral chronic dry eye syndrome. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an increased rating claim for service-connected tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Throughout the appeal period, the criteria for a separate rating of 20 percent for bilateral chronic dry eye syndrome are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 6025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Additional VA medical records and an examination have been associated with the record since the April 2006 Statement of the Case. A Supplemental Statement of the Case should be furnished if the agency of original jurisdiction received additional pertinent evidence after a Statement of the Case or the most recent Supplemental Statement. 38 C.F.R. § 19.31. As the claims are being remanded, the Board did not seek a waiver for the additional evidence and the RO will have an opportunity to review the evidence in the first instance. Given the favorable nature of the decision, there is no prejudice to the Veteran with the Board proceeding. 1. Entitlement to an initial rating higher than 10 percent for tinnitus The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, at the March 2021 Board hearing, the Veteran testified that he wished to withdraw his appeal for a rating higher than 10 percent for tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is dismissed. Increased Rating 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 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. 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). 2. Entitlement to a separate 20 percent rating for bilateral chronic dry eyes The Veteran contends that the chronic dry eye syndrome warrants a higher rating. The Board agrees. The Veteran's blepharitis and chronic dry eye syndrome is rated 10 percent disabling by analogy under DC 6099-6018, which pertains to chronic conjunctivitis (non-trachomatous). The Board finds that a separate 20 percent rating is warranted for the dry eye syndrome under DC 6025, which pertains to disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). Under DC 6025, a 20 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. During the pendency of the appeal, VA issued two final rules revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye in 2008 and 2018. 73 Fed. Reg. 66543; 83 Fed. Reg. 15316. The final rules went into effect November 10, 2008, and May 13, 2018. There was no amendment to Diagnostic Code 6025. With regard to visual impairment, the May 2018 amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. 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 evaluated 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. Subject to the provisions of 38 C.F.R. § 3.383(a), if visual impairment of only one eye is service-connected, the visual acuity of the other eye will be considered to be 20/40 for purposes of rating the service-connected visual impairment. 38 C.F.R. § 4.75(c). Diagnostic Code 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 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. A review of the evidence shows that at the February 2005 VA examination, the Veteran reported a dry eye syndrome diagnosis for several years. He treated the condition with artificial tears several times a day. Corrected distance measured 20/20 bilaterally. The examiner indicated the dry eyes were controlled with the artificial tears. VA medical records show continued treatment for bilateral dry eye syndrome with treatment of various artificial tears and eye drops. At the March 2021 hearing, the Veteran testified that he still has bilateral dry eyes and receives an annual eye examination to evaluate his eye disabilities. The dryness caused some blurriness. In light of the Veteran's testimony and resolving all reasonable doubt in favor of the Veteran, the Board finds that a separate 20 percent rating is warranted for bilateral dry eye syndrome throughout the appeal period. The Veteran is in receipt of the highest possible schedular rating. Although the Veteran experienced some blurriness, the evidence does not show the bilateral dry eye syndrome caused any decrease in visual acuity or other visual impairment, or any incapacitating episodes. Therefore, 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 Diagnostic Code 6025 or any other potentially applicable diagnostic code. Thus, the record does not show that a higher rating is warranted. Accordingly, the Board finds that throughout the appeal period a separate 20 percent rating for bilateral dry eye syndrome is warranted. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 10 percent for right wrist carpal tunnel syndrome is remanded. The Veteran was most recently provided with a VA examination in February 2005. At the March 2021 Board hearing, the Veteran asserted that the right wrist disability has increased in severity since the Veteran was last examined by VA in February 2005. Specifically, the Veteran asserted that he could no longer perform tasks for more than 5-15 minutes without needing a break. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an updated VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to an initial rating higher than 10 percent for bilateral meibomian gland blepharitis is remanded. The Veteran was most recently provided with a VA examination in February 2005. Since then, the Veteran was diagnosed with pinguecula. The record also shows complaints of redness, tearing, and a foreign body sensation, and active prescriptions for dry eye medication. The Board notes the rating criteria for eye disabilities has undergone two revisions since the February 2005 examination. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo an updated VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Veteran's VistA records were not uploaded to the claims file. A January 2017 treatment record shows eye images were scanned into VistA. However, these images have not been associated with the record. On remand, relevant VistA records, to specifically include the January 2017 images should be associated with the record. 3. Entitlement to an initial rating higher than 10 percent for a lumbar spine disability is remanded. The Veteran's most recent VA spine examination was in October 2019. Since that time, at the March 2021 Board hearing, the Veteran and the Veteran's representative indicated that the Veteran's disability had worsened and that the October 2019 examination was inadequate. Specifically, the Veteran reported that the October 2019 examiner did not perform range of motion testing. The Veteran and the Veteran's representative highlighted the February 2021 VA chiropractor notes that indicate a significant decrease in range of motion. As such, the Board finds it necessary to remand this matter to afford him an opportunity to undergo a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, VA medical records indicate the Veteran received care from private providers under the VA Choice Benefits program. Further, some VA-authorized treatment records have been scanned into the Veteran's health record, but have not been associated with the Veteran's claims file. See November 2017 Choice provider agreement; December 2017 authorization for 14 visits. VA treatment and VA authorized non-VA treatment records must be obtained before final adjudication these issues, regardless of relevance. See Sullivan v. McDonald, 815 F.3d; 786, 790-91 (Fed. Cir. 2016); Turner v. Shulkin, 29 Vet. App. 207, 210 (2018); see also Jones v. Wilkie, 918 F.3d 922, 926-27 (Fed. Cir. 2019). A remand is required to allow VA to obtain them. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for TDIU is inextricably intertwined with the claims for increased ratings. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a TDIU must be deferred. The matters are REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain any outstanding VA and private treatment records, to specifically include all VA Choice Benefits providers. If any private records identified are not received pursuant to the AOJ's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. All attempts to locate records must be documented in the claims file. 2. Furnish to the Veteran a VA Form 21-8940, to enable him to file a formal application for TDIU. Send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply a form to apply for TDIU. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist disability. The examiner must review the record and must note that review in the report. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also comment on the functional impairment resulting from the Veteran's right wrist disability. 4. Schedule the Veteran for a VA eye examination to determine the severity of bilateral blepharitis disability. The examiner must review the claims file and should note that review in the report. The examiner should specifically identify eye disabilities, and describe in detail all pertinent symptomatology and findings of any visual impairment found, including any visual field loss. The examiner must elicit information about the nature of the eye disabilities and all symptoms or manifestations of the disabilities when present, even if not present at the time of the examination, to specifically include blurriness, a wax paper/film-like sensation, redness, and extended breaks to restore eye comfort. The examiner must address whether these symptoms are attributable to the service-connected eye disabilities. The examiner should also comment on the functional impairment resulting from the Veteran's eye disability. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale should be provided for any opinions expressed. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing of the thoracolumbar spine. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record and additional facts are required, or the examiner does not have the knowledge or training. The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. VICTORIA MOSHIASHWILI 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.