Citation Nr: 21042558 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-04 751 DATE: July 13, 2021 ORDER Entitlement to a separate 10 percent rating for watering photophobia is granted. REMANDED Entitlement to a rating in excess of 30 percent for left eye keratoconus is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's Intacs corneal implant surgery for his service-connected left eye keratoconus resulted in watering photophobia and glare sensitivity. CONCLUSION OF LAW The criteria for a separate 10 percent rating for watering photophobia have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.84a, Diagnostic Codes (DCs) 6099-6036. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1984 to October 1987, and from January to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2016 decision, the Board denied the Veteran's claim for an extraschedular rating in excess of 30 percent for left eye keratoconus. The Veteran appealed the Board's 2016 decision to the United States Court of Appeals for Veterans Claims (CAVC). In an October 2017 order, CAVC granted a September 2017 Joint Motion for Remand (JMR), which vacated the 2016 decision and remanded the matter back to the Board. The JMR questioned the adequacy of a 2011 VA examination. These claims were previously before the Board in April 2018, which remanded the increased rating claim to obtain private treatment records and afford the Veteran an updated examination. The issue of entitlement to TDIU was raised by the record and was added to the appeal in the April 2018 remand. In November 2018, the Veteran participated in an updated VA eye examination. The claims were remanded again in February 2020 for referral to the Director of Compensation for initial consideration of the Veteran's extraschedular claims. In October 2020, the Director of Compensation issued an advisory opinion finding that extraschedular evaluation should be denied. In December 2020, the claims were again remanded, this time for Social Security Administration Disability benefits (SSDI) records and additional examination with opinions. 1. Entitlement to a separate 10 percent rating for watering photophobia is granted. The Veteran is currently in receipt of a 30 percent rating for his left eye keratoconus, as well as special monthly compensation (SMC) for loss of use of one eye. He is seeking additional extraschedular compensation. The JMR noted that his keratoconus included "watering" of the eye, and that the Board failed to address this symptom in the 2016 decision regarding referral for extraschedular consideration. The Veteran's current 30 percent rating was provided under Diagnostic Codes (DCs)6035-6077. 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. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Under the former criteria, DC 6035 directed that keratoconus be evaluated based on impairment of visual acuity. Under the revised criteria, DC 6035 is to be evaluated under 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. Although the revised criteria of DC 6035 include a rating up to 60 percent, 38C.F.R. §4.75 continues to include that the maximum rating available for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Combinations of evaluations based on visual impairment of one eye with evaluations for other disabilities of the same eye not based on visual impairment are allowed, (e.g. disfigurement under DC 7800).(The Board notes that DC 6066 provides ratings for visual acuity based on the poorer eye having visual acuity of 10/200 or better). On April 25, 2011, the Veteran participated in an eye examination. He reported his left keratoconus had been present since 1986 when he sustained trauma during field exercises when black powder from a gun entered his eye. He reported symptoms of glare, halos, sensitivity to light, watering, and blurred vision in the left eye. He had Intacs surgery at Duke Eye on April 12, 2010, with "residuals of light sensitivity." Slit lamp evaluation revealed Intacs inserted to the left cornea. The examiner noted that the "subjective factors" of the Veteran's keratoconus was "blurred vision." In November 2018, the Veteran participated in a fee-basis (contractor) VA eye examination. He was diagnosed with left eye keratoconus only in the diagnosis section. Under the cornea/conjunctiva section of the examination report, the Veteran was noted to have bilateral keratoconus and bilateral "other" cornea condition. The examiner explained that the Veteran had early corneal irregularity in his right eye with more advanced keratoconus changes in his left eye. Under the section related to corneal transplants, the examiner selected that the Veteran had "glare and photophobia" of the left eye. In the remarks section, the examiner wrote that the Veteran "exhibited and complained of watering of his left eye" and that the "watering photophobia and glare...affected his daily functioning activities, including his work situation." Based on this, the examiner noted that there was a "nexus" between the Veteran's left "keratoconus and his issues of photophobia and glare sensitivity." A review of VA treatment records from 2015 to 2020 did not include complaint of watering photophobia or glare. Indeed, many primary care physician records from this period included a negative finding for "tearing" during routine evaluations. However, an October 6, 2017 ophthalmology record included the Veteran's report of "some tearing" of his right eye following episodes of his vision "graying over" and becoming blurry. Also, records from 2018 included the Veteran's difficulty in using contact lenses, which resulted in his complaints of red, painful eyes and his decision to ultimately go back to wearing glasses. In March 2020, the Veteran's attorney submitted a brief arguing for "secondary service connection" for cataracts and "glare with watering photophobia." She argued his "glare with watering photophobia" should be rated as analogous to DC 6025 for disorders of the lacrimal apparatus. She also submitted medical articles regarding the likelihood of keratoconus patients developing lens opacities earlier and suffering from dry eye and "tear instability." In December 2020, the Board remanded the Veteran's eye claim, in part so that the Veteran could be afforded an updated eye examination which addressed the Veteran's claims related to cataracts, right keratoconus, and "watering photophobia" and sought nexus opinions. On April 12, 2021, the Veteran participated in another fee-basis VA examination. He was noted to have suffered blunt force injury to his left eye in 1986 resulting in left keratoconus. He required special corneal Intacs surgery for his left eye in 2011 (the Board notes that VA treatment records indicate the Veteran's Intacs surgery occurred in April 2010). "He developed a glare in his left eye as a result of the surgery." On slit lamp evaluation, he had left keratoconus with corrective intact surgery, but a normal right cornea. In the remarks section, the examiner noted the Veteran's contention that he should be service-connected for his watering photophobia with glare. The examiner noted that there were no findings of watering photophobia or glare sensitivity of the right eye to support a diagnosis. For the condition of watering photophobia with glare of the left eye, "please refer to the diagnosis section." Regarding how the Veteran's watering photophobia with glare impact his functioning, the examiner wrote: "yes mostly due to the Intac placement in left eye." In response to whether the Veteran's watering photophobia was similar to disorders of the lacrimal apparatus, the examiner wrote: "yes, the glare is causing tearing and photophobia." Although the Veteran's attorney suggested a rating under DC 6025 for the Veteran's symptoms of watering photophobia and glare sensitivity, the Board finds that an analogous rating to DC 6036 more closely approximates the symptoms and manifestations. Under DC 6036, for status post corneal transplant, a minimum 10 percent rating is provided if there is pain, photophobia, and glare sensitivity. Otherwise, the status post corneal transplant should be evaluated based on visual impairment (old criteria) or under the General Rating Formula for Diseases of the Eye (revised criteria). Under DC 6025, for disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.), a 20 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. The Veteran is currently in receipt of a 30 percent rating for left eye keratoconus based on visual impairment (central visual acuity/visual field defect). As noted above, the evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. Id. § 4.75(d). The evaluation for visual impairment of one eye should be combined with other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under DC 7800). 38 C.F.R. § 4.75(d). Although symptoms of glare sensitivity and photophobia impact visual acuity, they are separate symptoms. Although DC 6036 directs that residuals of a corneal transplant should be rated based on visual impairment/General Rating Formula with a minimum 10 percent provided for symptoms of pain, photophobia, and glare sensitivity, the Board finds that a separate 10 percent rating for these symptoms violates the Rule Against Pyramiding when the Veteran is already in receipt of a 30 percent rating for visual impairment based on the underlying condition (keratoconus) that required surgery (Intacs implant). Additionally, the Board notes that a greater rating would not have been available under DC 6025 as the Veteran's attorney requested as unilateral disorders of the lacrimal apparatus also warrants a 10 percent rating. At the time of this examination, the Veteran is only service-connected for a left eye disability and VA providers/examiners have noted that his glare and photophobia of his left eye are due to his left eye surgery. In sum, the Board finds that a separate 10 percent rating for watering photophobia and glare sensitivity status-post Intacs surgery (April 12, 2010) is warranted under DC 6036. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for left eye keratoconus is remanded. Although the Veteran's claim for an increased rating for his left eye keratoconus have been remanded several times, the evidence of record still does not adequately address the Veteran's contentions. During his April 25, 2011 VA eye examination, the Veteran was noted to have left keratoconus following an in-service injury to his left eye. He underwent an Intacs surgical implant for his left keratoconus on April 12, 2010. On examination, his left eye had inferior steepening of the left cornea measuring 3 mm. Findings related to external evaluation of his right eye were not noted in the examination report. "Examination reveals both lenses are intact...slit lamp examination reveal[ed] Intacs are inserted in the left cornea." In November 2018, the Veteran participated in a fee-basis (contractor) VA eye examination. The diagnosis section listed only left eye keratoconus. On slit lamp evaluation, the examiner noted that the Veteran had left eye keratoconus, and an irregular right cornea. Under the cornea/conjunctiva section of the examination report, the Veteran was noted to have bilateral keratoconus and bilateral "other" cornea condition. The examiner explained that the Veteran had early corneal irregularity in his right eye with more advanced keratoconus changes in his left eye. The examiner noted that the Veteran's keratoconus would now allow him to work in a field that required depth perception. The examiner did not provide an opinion as to whether the Veteran's right eye cornea condition was related to service or to his service-connected left eye keratoconus. VA ophthalmology records include that the Veteran has bilateral keratoconus, left worse than/greater than right. An October 6, 2017 VA ophthalmology record noted left eye keratoconus history, with the Veteran's complaint of "graying over" of his right vision. Although his cornea was noted to be "clear" on objective evaluation, the impression was of bilateral keratoconus, left worse than right. Following the December 2020 remand for an additional examination, the Veteran participated in an April 12, 2021 fee-basis VA eye examination. The 2021 and 2018 examinations were completed by the same ophthalmologist. During the April 2021 examination, the Veteran was diagnosed with left keratoconus and bilateral cataracts. On slit lamp evaluation, he had left keratoconus with corrective intact surgery, but a normal right cornea. He had bilateral nuclear sclerotic cataract. In the remarks section, the examiner noted that there was no diagnosis of right eye keratoconus/cornea irregularity because there were no findings, signs or symptoms to support this diagnosis during the April 2021 examination. Similarly, the examiner noted that there were no findings related to the Veteran's claim of right eye watering photophobia and glare sensitivity to support a diagnosis during the 2021 examination. The examiner was asked to provide nexus opinions for several eye diagnoses in the record. Regarding the Veteran's right eye cataracts, the examiner provided a negative secondary service connection (to left keratoconus) opinion with the explanation of "there was no evidence in his record to support causation of the cataract right eye." He also noted that the Veteran's left keratoconus developed after an injury, and there was no evidence of trauma or disease of the right eye. Regarding whether the Veteran's right cataracts was due to service, the examiner provided a negative opinion with the explanation that there was "no evidence that would support the cataract development in the right eye." However, the examiner provided a positive opinion linking the Veteran's left eye cataracts to his in-service eye injury. On June 1, 2021, the Veteran submitted a statement that during the April 2021 examination he reported to the examiner that he had been told he had a slight case of keratoconus of the right eye. However, Dr. C.Z. told the Veteran during the April 2021 examination that he did not have keratoconus of the right eye, but had "some type of stigmatism" in his right eye. The Veteran then noted that Dr. C.Z. was the same doctor who had evaluated him in 2018 and diagnosed him with right eye keratoconus during that examination. [The Board notes the 2018 examination noted an irregular right cornea]. The Veteran stated that he also reported the symptoms of watering photophobia and glare sensitivity in his right eye during the 2021 examination as well. In a June 2021 brief, the Veteran's attorney argued that the April 2021 examination was inadequate because the examiner failed to discuss all questions asked by the December 2020 Board remand. She argued that the examiner failed to adequately discuss the Veteran's reports of symptoms of watering photophobia of both eyes, and the functional impact of these symptoms. She noted the discrepancy between the 2018 findings of a right cornea irregularity and the 2021 findings of a normal right cornea. The Board agrees that the discrepancy in the findings related to the Veteran's right eye between the 2018 and 2021 (and VA treatment records) has not yet been adequately addressed with a medical explanation as to why the Veteran is sometimes noted to have right keratoconus/right cornea irregularity and sometime to have a normal right cornea. Similarly, the nexus opinion for a right cornea disability (and therefore, the opinion related to right eye cataracts/photophobia/glare sensitivity) is not supported by a complete explanation. On remand, an addendum opinion must be sought. 2. Entitlement to total disability based on individual unemployability (TDIU) is remanded. The Veteran's claim of entitlement to TDIU is intertwined with the outcome of his increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. The AOJ should attempt to find a different VA evaluator than the examiner who performed the 2018 and 2021 examinations (Dr. C.Z.) to provide addendum opinions based on a review of the record. If the new evaluator finds that additional examination is necessary, then an examination must be scheduled. The new examiner should address the following: (a.) Does the Veteran have a right cornea irregularity? Does the Veteran have right keratoconus? The examiner should address the differences in the 2011, 2018, and 2021 examinations as well as the ongoing VA treatment records as the Veteran is sometimes noted to have bilateral keratoconus. The examiner should address whether there are any objective findings regarding the right cornea. (b.) Is it at least as likely as not (50/50 probability or greater) that the Veteran has a right cornea irregularity/keratoconus as a result of his military service? (c.) Is it at least as likely as not (50/50 probability or greater) that the Veteran has a right cornea irregularity/keratoconus as a result of his service-connected left keratoconus/photophobia/cataract? (d.) Is it at least as likely as not (50/50 probability or greater) that the Veteran has a right cataract as a result of his military service or his service-connected left keratoconus/photophobia/cataract? (e.) Is it at least as likely as not (50/50 probability or greater) that the Veteran has a right watering photophobia/glare sensitivity as a result of his military service or his service-connected left keratoconus/photophobia/cataract? (Continued on the next page) A complete and detailed explanation must accompany any opinion expressed. Although an explanation may seem obvious (e.g. an explanation as to how one part of the eye cannot impact a part of the opposite eye), the Board still requires a medical explanation. 2. After completing the development requested above, readjudicate the Veteran's increased rating and TDIU claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.