Citation Nr: 22016879 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 16-45 413 DATE: March 23, 2022 ORDER A higher 20 percent rating is granted for bilateral dry eye syndrome for the initial period at issue prior to February 10, 2020; however, a rating higher than 20 percent for this disability, either prior to or since February 10, 2020, conversely is denied. FINDINGS OF FACT 1. The Veteran has had a diagnosis of dry eye syndrome for the entirety of the review period under consideration; but it has not resulted in loss of visual acuity, loss of visual field, muscle dysfunction, or incapacitating episodes. 2. His glaucoma is unrelated to his dry eye syndrome and is not aggravated by it. CONCLUSION OF LAW The criteria are met for entitlement to a 20 percent rating for the dry eye syndrome even prior to February 10, 2020 (i.e., for the entire rating period at issue meaning effectively since April 5, 2014); however, no higher rating is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6099-6025. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 2003 to April 2004 and from July 2007 to April 2014. This appeal to this Board of Veterans' Appeals (Board) is from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In May 2019, August 2020, and November 2021, the Board remanded this claim back to the RO, so back to the AOJ, for further development and consideration. There since has been the required compliance certainly the acceptable substantial compliance, with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, consequently, is proceeding to adjudicating this claim. There is, however, one other preliminary point also worth mentioning. In July 2015, Attorney J. Michael Woods was appointed as the Veteran's representative through submission of a VA Form 21-22a. But, in August 2017, Attorney Woods informed the Veteran and VA that he was withdrawing his representation of the Veteran in this appeal. In June 2020, VA acknowledged that withdrawal of representation. Because the Veteran has not since appointed any new representative, he is now unrepresented in this appeal so a pro se claimant. 1. A higher 20 percent rating is granted for the bilateral dry eye syndrome even prior to February 10, 2020 (i.e., effectively since April 5, 2014) 2. A rating higher than 20 percent, however, either prior to or since February 10, 2020, conversely is denied Prior to February 10, 2020, the Veteran had a 0 percent (so noncompensable) rating for his bilateral (left and right) dry eye syndrome. Since February 10, 2020, he has had a higher 20 percent rating for this service-connected disability. The respective ratings are under DC 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 6025 concerns disorders of the lacrimal apparatus, and DCs 6061 to 6066 encompass the table for Impairment of Central Visual Acuity. 38 C.F.R. § 4.79. 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 February 2020 VA examination confirm he has a diagnosis of bilateral (so left and right) dry eye syndrome; but, notably, he has had this disorder for the entirety of the rating period under review, so not just since February 2020 when he had that VA examination. This is significant because the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that when evidence is created is irrelevant compared to when the Veteran actually was experiencing relevant symptoms. See McGrath v. Gober, 14 Vet. App. 28 (2000). Treatment records and the reports of his VA examinations also confirm the Veteran's dry eye syndrome is considered a disorder of the lacrimal apparatus. The claim previously was remanded for clarification of whether the Veteran's glaucoma, which was diagnosed in 2018, is related to or has been aggravated by his dry eye syndrome. An addendum opinion resultantly was provided pursuant to that prior November 2021 remand directive in which an examiner explained that the Veteran's glaucoma is less likely than not related to his dry eye syndrome. The rationale was that dry eye syndrome is the result of loss of goblet cell function (or, in other words, a loss of tears) whereas glaucoma is due to optic nerve pathology. Consequently, the two conditions, according to this examiner, are distinct. Moreover, the dry eye syndrome also does not aggravate the glaucoma because of the distinct ways in which they affect the eye. This examiner further clarified that the two conditions have completely separate symptoms. While dry eye syndrome produces foreign body sensation and periodic irritation, glaucoma commonly causes peripheral visual field defects. Consequently, while visual field defects are noted in the reports of the Veteran's February 2020 and January 2022 VA eye examinations, they have not been attributed to his service-connected dry eye syndrome and, therefore, are not reason or basis for increasing the rating for the dry eye syndrome at least not beyond the 20 percent level. 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). 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. But the record on appeal, including the reports of the Veteran's February 2020 and January 2022 VA examinations, do not indicate he has experienced a reduction in visual acuity, visual fields, or muscle dysfunction because of his dry eye syndrome, i.e., because of his service-connected disability. Higher ratings are available, as well, in cases where the Veteran has incapacitating conditions; however, there similarly is no indication either in his treatment records or according to VA examiners that he has experienced incapacitating episodes owing to his dry eye syndrome. 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. There is no evidence of record that the Veteran has received any of the above treatment. In summary, while the Veteran's bilateral dry eye syndrome has been found to be a disorder of the lacrimal apparatus, treatment records and VA examinations in February 2020 and January 2022 and the addendum opinion in January 2022 clarify that he has not experienced visual impairment in the form of reduced visual acuity, visual fields, or muscle dysfunction that has been attributed to his dry eye syndrome. Moreover, while he has experienced a reduction in his visual fields, an examiner has indicated this reduction is due instead to the Veteran's glaucoma, which is not a service-connected disability (including not in the sense that it is secondary to meaning caused or aggravated by his bilateral dry eye syndrome). See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). And, consequently, the glaucoma cannot be considered in rating the bilateral dry eye syndrome. That notwithstanding, because the Veteran has had this bilateral dry eye syndrome for the entirety of the rating period under review, the higher 20 percent rating is warranted for it effectively since April 5,, 2014, and not just instead since February 10, 2020, though no greater rating is warranted. 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.