Citation Nr: 22015178 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-09 112A DATE: March 16, 2022 ORDER A higher 10 percent rating is granted for residuals of right eye erosion, including dry eye syndrome of this eye. FINDING OF FACT The Veteran has dry eye syndrome of his right eye that is associated with, so a residual of, his service-connected right eye erosion. CONCLUSION OF LAW The criteria are met for entitlement to a higher 10 percent rating, though no greater, for residuals of right eye erosion, including especially for dry eye syndrome of this eye. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.16, 4.20, 4.75-4.79, Diagnostic Code (DC/Code) 6099-6025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to June 1987. The Board previously remanded this claim in December 2020, June 2021, and most recently in January 2022 for further development. This appeal has been advanced on docket pursuant to 38 C.F.R. § 20.902(c). See also 38 U.S.C. § 7107(a)(2). A higher 10 percent rating, though no greater, is granted for dry eye syndrome since associated with, therefore a residual of, the right eye erosion. At present, the Veteran has separate 0 percent (so noncompensable) ratings for residuals of right eye erosion and for associated dry eyes (also claimed and characterized as right eye corneal abrasion and erosion). The respective ratings are under DC 6099-6009 and 6099-6025. Hyphenated DCs, including a DC ending in the digits "99," are used when there is no specifically applicable DC, and the disability is rated by analogy. 38 C.F.R. § 4.27. DC 6009 concerns an unhealed eye injury, and DCs 6061 to 6066 encompass the table for Impairment of Central Visual Acuity. 38 C.F.R. § 4.79. The Board, however, finds that the assignment of DC 6025, which addresses disorders of the lacrimal apparatus, is most appropriate for the following reasons. Of note, the assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. As noted, DC 6025 addresses disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). And, according to this DC, a 20 percent rating is warranted for bilateral involvement (meaning affecting both eyes) and a 10 percent rating for unilateral involvement (just one eye). During the pendency of this 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 on May 13, 2018. However, there was no amendment to DC 6025. Treatment records and the report of the Veteran's September 2017 VA examination confirm he has received a diagnosis of bilateral (so left and right) dry eye syndrome; he has had this disorder for the entirety of the rating period under review. But only the impairment in his right eye is service connected. Treatment records also confirm the Veteran's dry eye syndrome is considered a disorder of the lacrimal apparatus. The October 2021 VA addendum opinion obtained on remand indicates that, while the Veteran has dry eye syndrome bilaterally, only that affecting his right eye is related to his service-connected right eye erosion. In contrast, the dry eye syndrome affecting his left eye was found to be less likely than not related to his service-connected eye condition, with the rationale that it was more likely associated with ultra-violet (UV) exposure and environmental irritants rather than the corneal erosion occurring in the opposite eye. See Mittleider v. West, 11 Vet. App. 181 (1998) (explaining that VA adjudicators must be able to distinguish or differentiate by probative evidence the extent of impairment that is attributable to service-connected disability). With regards to his right eye, the Veteran's treatment records also indicate that eye drops have been prescribed to treat his eye condition (as needed) and that he continues to experience symptoms periodically such as itchiness, blurry vision, difficulty opening his right eye and eye pain that, according to his subsequent February 2021 VA examination, are all related to his service-connected eye condition (right eye erosion). Consequently, a higher 10 percent rating is warranted for unilateral dry eye syndrome owing to his right eye erosion. Even greater ratings are available under different DCs for eye conditions causing visual impairment, specifically, those affecting the Veteran's visual acuity, visual fields, or muscle function. The record on appeal does not, however, indicate the Veteran has experienced a reduction in visual acuity, visual fields, or muscle dysfunction because of his right eye erosion, i.e., because of his service-connected disability. Higher ratings are available, as well, in cases where the Veteran has incapacitating conditions. The Board acknowledges that the Veteran's most recent treatment records include a report of a treatment visit in September 2021 because of a subconjunctival hemorrhage. However, the record does not indicate he has experienced an incapacitating episode under either the pre-2018 or current rating criteria. Prior to May 13, 2018, when incapacitating episodes had a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating was warranted. When incapacitating episodes had a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating was warranted. When incapacitating episodes had a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating was warranted. When incapacitating episodes had a total duration of at least 6 weeks during the past 12 months, a 60 percent rating was warranted. A Note following the General Rating Formula indicates that, for VA compensation purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. But, prior to May 13, 2018, the Veteran's treatment records do not mention any prescribed bedrest, meaning aside from the other modalities of treatment he had. Currently (as of May 13, 2018), when 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) explains 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. In considering the Veteran's most recent treatment visit in September 2021, the Board finds that it does not qualify as "treatment" under the specific definition of § 4.79 for considering it as an incapacitating episode. The treatment records show eye drops were prescribed to be used as directed, and the Veteran was instructed to return regularly for future monitoring. But the examples listed under § 4.79 suggest an implicit requirement that a qualifying "treatment" must require administration by a physician or otherwise implicate a certain severity of potential side effect: "systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions." 38 C.F.R. § 4.79. During his September 2021 visit, the Veteran was prescribed eye drops, carboxymethylcellulose 0.5%, to be used as directed on an outpatient basis. He was also directed to use a cold compress, as needed. But neither qualifies as "treatment" as defined or contemplated by § 4.79. The Board also sees the Veteran's several VA examinations also found no incapacitating episodes attributable to any eye conditions under either the pre-2018 or current definition. Thus, there is no basis under the General Rating Formula for a higher rating for the Veteran's right eye erosion based on incapacitating episodes. 38 C.F.R. § 4.79. In summary, while the Veteran's dry eye syndrome of the right eye has been found to be a disorder of the lacrimal apparatus associated with his service-connected right eye erosion, treatment records and VA examinations in September 2017 and February 2021 and the addendum opinion in October 2021 clarify that he has not experienced visual impairment in the form of reduced visual acuity, visual fields, or muscle dysfunction. Thus, the Board finds the assignment of DC 6025 to be warranted since most appropriate. The VA addendum opinion in October 2021 also clarifies the Veteran's dry eye syndrome of the left eye is unrelated to his service-connected right eye erosion so cannot be rated as part and parcel of this this disability. Consequently, a higher 10 percent rating is warranted for unilateral dry eye syndrome of the right eye associated with right eye erosion for the entire period under review, but no greater rating. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.