Citation Nr: 22018231 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-33 953 DATE: March 28, 2022 ORDER Entitlement to a compensable rating for dry eye syndrome is denied. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's dry eye syndrome was asymptomatic, and did not have unilateral involvement. CONCLUSION OF LAW The criteria for a compensable rating for dry eye syndrome have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.123, 4.75-4.79, Diagnostic Code 6025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to November 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. Jurisdiction of this appeal is currently with the RO in Atlanta, Georgia. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge of the Board in May 2021. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in October 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matter was remanded to obtain the Veteran's updated VA treatment records and to obtain a VA eye examination to determine the current severity of the Veteran's dry eye syndrome. Updated VA treatment records have been associated with the record and an October 2021 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. A VA eye examination was conducted in December 2021. The Board therefore determines that there has been substantial compliance with its previous remand with regards to the claim for a compensable rating for dry eye syndrome. The case has now been returned to the Board for appellate action. Increased Rating Dry Eye Syndrome The Veteran seeks a compensable rating for his dry eye syndrome as his symptoms are more severe than contemplated by the current noncompensable rating assigned. Specifically, the Veteran asserted that his dry eye syndrome manifested in difficulty driving at night, working on his computer, headaches, and redness. See e.g. VA Form 21-4138 Statement in Support of Claim, February 26, 2015; see Notice of Disagreement, February 2, 2016. Additionally, the Veteran testified at his Board hearing that his dry eye syndrome manifests with constant burning and dryness, requiring him to use a cool compress and/or wet towel to alleviate symptoms. See Board hearing transcript, May 5, 2021. Finally, the Veteran's representative asserts the VA examination reports are inadequate to decide the claim because a diagnosis was not rendered, and the Veteran is entitled to a 20 percent rating. See Appellate Brief, February 25, 2022. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's dry eye syndrome is rated as noncompensable under 38 C.F.R. § 4.79, Diagnostic Code 6025, for disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). Under Diagnostic Code 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 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. There was no amendment to Diagnostic Code 6025. Turning to the evidence, the Veteran was afforded a VA examination in July 2015. At that time, the VA examiner diagnosed dry eye syndrome. The Veteran reported dry eyes with the occasional use of artificial tears. Upon physical examination, corrected distance visual acuity was 20/40 or better bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have corneal irregularity that resulted in severe irregular astigmatism. The Veteran did not have diplopia. There was no visual field defect; the Goldmann Charts were associated with the claims file. He did not have any incapacitating episodes related to his dry eye syndrome. The examiner noted the Veteran's dry eye syndrome did not impact his ability to work. In a September 2015 VA opinion, the examiner opined that the Veteran's minor visual field impairment was unrelated to his diagnosis of dry eye syndrome or conjunctivitis. In that regard, the diagnosis rendered would not have an effect on the visual field. The Veteran was afforded a VA examination in October 2017. At that time, the examiner diagnosed dry eye and insufficient tear film bilaterally. The Veteran reported he had right eye pain due to a basketball injury that had been successfully treated with antibiotic eye drops. Upon physical examination, his corrected distance visual acuity was 20/20 bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have a visual field defect; visual field testing was not performed, and accordingly, a Goldmann Chart was not associated with the claims file. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. There was no scarring or disfigurement found. The Veteran did not have any incapacitating episodes attributable to his eye condition. The examiner found the Veteran's eye condition did not impact his ability to work. The VA examiner remarked that the level of severity was "none"; there was no change nor progression of the diagnosed dry eye syndrome. There was no evidence of dry eye or insufficient tear film of both eyes. Of record is a June 2021 private treatment record that indicates the Veteran had visual acuity of 20/20 bilaterally. The Veteran was afforded a VA examination in December 2021. At that time, the VA examiner determined the Veteran did not have a currently diagnosable eye condition. In this regard, the examiner noted there are no medical records by optometry or ophthalmology to confirm a diagnosis of dry eye syndrome; he had no signs of a dry eye such as a rapid tear breakup time, punctate keratitis, or poor tear meniscus. Upon physical examination, corrected distance visual acuity was 20/20 or better bilaterally. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. The Veteran did not have anatomical loss, light perception only, extremely poor vision or blindness of either eye. The Veteran did not have corneal irregularity that resulted in severe irregular astigmatism. The Veteran did not have diplopia. The Veteran did not have a documented visual field defect. The Veteran did not have any incapacitating episodes attributable to his eye condition. The examiner noted the Veteran's eyes did not impact his ability to work. The VA examiner remarked that there was no diagnosis because there were no findings, signs, or symptoms to support a diagnosis. Accordingly, the VA examiner opined that the Veteran's bilateral dry eye syndrome was less likely than not incurred in or caused by his service. Further review of the record shows that the Veteran receives treatment at VA medical centers and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported symptoms of his dry eye syndrome or visual acuity testing results that are worse than those noted in the various VA examination reports and treatment records of record. Based on the foregoing, the Board finds that a compensable rating is not warranted for service-connected dry eye syndrome. A higher rating under the diagnostic criteria would require unilateral involvement. In this case, his visual acuity was consistently demonstrated as 20/40 or better bilaterally without a visual field defect or contraction of a visual field and without diplopia or astigmatism. Additionally, the Veteran was not shown to have incapacitating episodes due to his dry eye syndrome. The Veteran has not been shown to have impairment of muscle function. In addition, the VA examiners from the July 2015, September 2015, October 2017, and December 2021 examinations noted the dry eye syndrome did not impact his ability to work. Moreover, the October 2017 and December 2021 VA examiners found that the Veteran did not have symptoms, signs, or findings that supporting a diagnosis for dry eye syndrome, such as, rapid tear breakup time, punctate keratitis, or poor tear meniscus. These symptoms warrant a noncompensable rating. See 38 C.F.R. § 4.79, Diagnostic Code 6025. This is the current rating assigned for this disability and a higher rating is not warranted. In sum, the Board finds the Veteran's dry eye syndrome manifests with inactive pathology without disfigurement or any other non-visual impairments; without incapacitating episodes in the past 12 months. Essentially, the Veteran's dry eye syndrome is asymptomatic throughout the period on appeal. He does not have disfigurement, decreased visual acuity, visual field defect, or any other compensable non-visual impairments that would allow for a higher initial rating under any other Diagnostic Code. See 38 C.F.R. § 4.79. The Veteran's belief that he is entitled to a compensable rating for his dry eye syndrome is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran's general belief that he is entitled to a compensable rating. The Board acknowledges the statements of the Veteran that his dry eye syndrome warrants a compensable rating due to constant burning and dryness, requiring him to use a cool compress and/or wet towel to alleviate symptoms, difficulty driving at night, working on his computer, headaches, and redness. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a higher initial rating than that assigned have been met. Moreover, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Additionally, the Board notes the assertion of the Veteran's representative that the VA examination reports are inadequate to decide the claim because a diagnosis was not rendered, and the Veteran is entitled to a 20 percent rating. See Appellate Brief, February 25, 2022. However, the Board notes the October 2017 and December 2021 VA examiners found the Veteran did not have a current diagnosis for dry eye syndrome, and elaborated that there were no findings, signs, or symptoms to support such a diagnosis such as rapid tear breakup time, punctate keratitis, or poor tear meniscus. Additionally, the VA examiners considered the lay statements of the Veteran, and reviewed the medical evidence associated with the claims file. The Veteran's representative failed to provide any further elaboration as to why such VA examination reports are inadequate or incomplete to decide the claim. Rather, they merely provided conclusory statements and assertions of such, and sought a higher 20 percent rating. This argument is therefore without merit. The Board has considered whether a staged rating under Hart v. Mansfield, supra, is appropriate for the Veteran's service-connected dry eye syndrome; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability is not warranted. The Veteran and his representative have not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In light of the above, the Board finds the evidence is against the assignment of a compensable rating for his dry eye syndrome, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Lumbar Spine Disorder The Veteran seeks entitlement to service connection for a lumbar spine disorder. As noted previously in the October 2021 Board remand, the Veteran testified at his Board hearing that he lifted or twisted his back and caused pain pursuant to his military occupational specialty (MOS) as a heavy equipment operator. As noted above, the claim was previously before the Board in October 2021, at which time the claim was remanded to obtain an adequate VA examination. Specifically, the October 2021 Board remand noted that the Veteran had been afforded VA examinations in February 2014, October 2017, and a February 2018 VA addendum opinion was obtained. However, the October 2021 Board remand determined that the February 2014 VA etiology opinion was inadequate because the examiner appeared to rely solely on the lack of medical treatment as evidence in support of this opinion. See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992); see also Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). The October 2021 Board remand also found that the October 2017 and February 2018 VA etiology opinions inadequate to decide the claim because those examiners failed to provide supporting rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Accordingly, the claim was remanded to obtain an adequate VA etiology opinion. The Veteran was afforded the directed VA examination in December 2021. At that time, the VA examiner opined that the Veteran's claimed lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In that regard, the examiner noted that the Veteran's isolated pain and/or strains he may have incurred in service would have resolved years ago; there were no new medical records through the years documenting evidence of an ongoing or chronic back pain since his separation from active service; and that his current low back pain or strain was due to a combination of his aging, gradual physical decondition, fairly physically demanding civilian job for nearly 30 years, and marked weight gain throughout the years. The Board finds the December 2021 VA medical opinion inadequate to decide the claim. In this regard, the VA examiner failed to provide supporting rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Additionally, the VA examiner again appeared to rely solely on the lack of medical treatment as evidence in support of this opinion. See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992); see also Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Accordingly, this opinion is inadequate for adjudication purposes. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board regrets the additional delay, but an adequate VA examination is needed before the Board can render a decision on this issue. Thus, in order to avoid additional remands and avoid the possibility of issuing another inadequate opinion, the VA examiner is requested to comply with the Board's remand directives and only issue the medical opinion specifically requested for each issue and restate the opinion utilizing the exact language specified. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D'Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again required to obtain an additional VA addendum opinion that complies with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed lumbar spine disorder. A copy of this remand must be provided to the examiner in conjunction with the examination. The need for further in-person physical examination is left to the discretion of the examiner. The examiner must respond to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disorder, is of service onset or otherwise related to his military service, to include the lifting and twisting injury he sustained to his back as well as in-service physical activity? The examiner should also note the significance, if any, of the Veteran's September 1979 lower back strain. The examiner must address the Veteran's complaints of, and treatment for, lumbar spine pain during active service, and the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner must reconcile any conflicting medical evidence of record. The examiner is reminded that the lack of documented medical evidence in service, while probative, cannot serve as the sole basis for a negative finding. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. (Continued on the next page) A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.