Citation Nr: 22018989 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-60 357 DATE: March 31, 2022 ORDER 1. As new and material evidence has been received, the application to reopen the previously denied claim for service connection for pharyngitis is granted, 2. Entitlement to service connection for pharyngitis, to include associated with his service-connected gastroesophageal reflux disease (GERD) with hiatal hernia, diverticulosis and esophageal ulcers (also claimed as acute ulcerative diverticulitis and dyspepsia), is denied. 3. Entitlement to service connection for right hip pain is denied. 4. Entitlement to service connection for bilateral dry eye syndrome is granted and is incorporated with the current service-connected Terrien's marginal corneal degeneration with pterygium of the right eye and bilateral allergic conjunctivitis. 5. Entitlement to service connection for hypertension is denied. 6. Entitlement to service connection for right ear hearing loss disability is denied. 7. Entitlement to a disability rating in excess of 20 percent for plantar fasciitis of the left foot is denied. 8. Entitlement to a disability rating in excess of 10 percent for Terrien's marginal corneal degeneration with pterygium of the right eye and bilateral allergic conjunctivitis with bilateral dry eyes is denied. 9. Entitlement to a disability rating in excess of 10 percent for sinusitis is denied. 10. Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea is denied. FINDINGS OF FACT 1. In a May 1998 rating decision, the RO denied the Veteran's claim for entitlement to service-connection for pharyngitis. The Veteran did not perfect his appeal or submit new and material evidence within the appeal period. 2. Evidence received since the May 1998 rating decision that denied the Veteran's claim for entitlement to service connection for pharyngitis is new and relates to an unestablished fact necessary to substantiate the claim. 3. The evidence of record persuasively weighs against finding that the Veteran has had pharyngitis at any time during or approximate to the pendency of the claim. 4. The evidence of record persuasively weighs against finding that the Veteran has had right hip pain that causes functional impairment of earning capacity at any time during or approximate to the pendency of the claim. 5. Resolving reasonable doubt in the Veteran's favor, his bilateral dry eye syndrome began during active service. 6. The evidence of record persuasively weighs against finding that the Veteran has had hypertension at any time during or approximate to the pendency of the claim. 7. The evidence of record persuasively weighs against finding that the Veteran's right ear hearing loss disability (prior to June 2017) began during active service, or is otherwise related to an in-service injury or disease. 8. The evidence of record persuasively weighs against finding that the Veteran has had right ear hearing loss disability from June 2017. 9. Plantar fasciitis of the left foot is manifested by occasional pain and tingling when the Veteran runs or walks a long distance. 10. Terrien's marginal corneal degeneration with pterygium of the right eye, bilateral allergic conjunctivitis, and bilateral dry eye syndrome manifests as impaired visual acuity to no worse than 20/40 bilaterally; without impaired visual fields, diplopia, nor incapacitating episodes in a twelve-month period. 11. Sinusitis manifests as no worse than one (1) non-incapacitating episodes within a 12-month period and tenderness of the sinuses. 12. Obstructive sleep apnea does not manifest with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for entitlement to service connection for pharyngitis has been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for pharyngitis due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for right hip pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for entitlement to service connection for bilateral dry eye syndrome are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to a disability rating in excess of 20 percent for plantar fasciitis of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code 5276. 8. The criteria for entitlement to a disability rating in excess of 10 percent for Terrien's marginal corneal degeneration with pterygium of the right eye, bilateral allergic conjunctivitis, and bilateral dry eye syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Codes 6000-6009, Diagnostic Code 6018, Diagnostic Code 6034, Diagnostic Code 7800. 9. The criteria for entitlement to a disability rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6513. 10. The criteria for entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1975 until his honorable discharge in September 1978. Subsequently, the Veteran served on active duty in the United States Army Reserve from April 1989 until his honorable discharge in April 1997 and from July 1998 until his honorable retirement in March 2010. The Veteran also served on inactive duty in the United States Army Reserve prior to his retirement for a total inactive service of 11 years, 9 months, and 24 days throughout his career. The Veteran is a medical professional and served as a nurse during his service. However, as will be addressed in greater detail below, the Veteran's inconsistent statements included within the Veteran's Board hearing testimony, VA treatment records, and written statements compel the Board to find that the Veteran's more recent statements (including but not limited to in-service onset) are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision(s) by the Houston, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2020, the Veteran and his spouse testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in San Antonio, Texas. Qualified Periods of Service Active duty for training includes full-time duty with the Reserve. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist must perform each year. It can also refer to the Reservist's initial period of training. Inactive duty training includes service with the Reserve (other than full-time duty) that usually indicates weekend drills or training. 38 U.S.C. § 101(23)(A), 38 C.F.R. § 3.6(d). Furthermore, 38 C.F.R. § 3.6(a) provides that any period of active military, naval, and air service, including active duty for training during which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, in which occurred during such training. For all other periods of service, a Reservist is not entitled to VA benefits. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence to reopen the claim of service connection for pharyngitis The Veteran applied for service connection for pharyngitis in May 1997. This claim was denied in a May 1998 rating decision based on a finding that the Veteran did not have a current disability. The Veteran did not appeal this issue, and it became final in May 1999. The Board also notes that the Veteran returned to active duty in July 1998. The Veteran applied for service connection for pharyngitis after his retirement in August 2010, noting that the disability was diagnosed in 1992. See August 2010 Correspondence. This claim was denied in the July 2011 rating decision because the Veteran did not submit new and material evidence. Evidence submitted since the May 1998 final decision includes August 2010 correspondence and Statement in Support of Claim (VA Form 21-4138) submitted as an informal application; January 2012 Notice of Disagreement (Statement in Support of Claim (VA Form 21-4138)); November 2017 Appeal to Board of Veterans' Appeals (VA Form 9); March 2020 Board hearing testimony and transcript; Service treatment records; and VA treatment records. The Board finds that the Veteran submitted new and material evidence for the pharyngitis. Specifically, during the Veteran's March 2020 Board hearing, he testified that when he has an endoscopy, it has a feeling that he has something in his throat and that his GERD also affects his pharyngitis. As this new evidence tends to show an alternate theory of entitlement, the Board will reopen this claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). To this extent, the Veteran's claim is granted and entitlement to service connection on the merits is addressed below. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). 2. Entitlement to service connection for pharyngitis, to include associated with his service-connected GERD with hiatal hernia, diverticulosis and esophageal ulcers (also claimed as acute ulcerative diverticulitis and dyspepsia) The Veteran asserts that he is entitled to service connection for pharyngitis. The Board finds that the evidence persuasively weighs against a finding of a current disability of pharyngitis. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran testified that his throat bothers him every day. See March 2020 Board hearing transcript, p. 17. However, in reviewing the VA treatment records throughout the period on appeal, the record demonstrates that the Veteran consistently denied throat pain. See May 2009, June 2010, November 2013, March 2014, August 2014, August 2015, March 2016, April 2017, August 2017, January 2018, and August 2018 VA treatment records. In weighing the probative value of contradictory evidence, the U.S. Court of Appeals for Veterans Claims has specifically held that the Board may properly assign more probative value to contemporaneous lay statements made for medical treatment purposes rather than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). The Veteran's inconsistent statements included within the Veteran's Board hearing testimony and VA treatment records compel the Board to find that the Veteran's more recent statements as to his disability are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no assertion of functional limitation due to pharyngitis. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim for service connection for pharyngitis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for right hip pain The Veteran asserts that his occasional right hip pain is associated with in-service running, but it has subsided and not something that bothered him. The Board finds that the evidence persuasively weighs against a finding of a current disability of right hip pain. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). During the Veteran's Board hearing, he testified that his right hip pain has subsided and does not bother him. Furthermore, there is no assertion, nor does the evidence reflect a right hip disability, including pain that causes functional impairment of earning capacity during the period on appeal. The Veteran's August 2017 VA treatment records reflect no hip disarticulation. In contrast, the Veteran simply asserts that right hip pain was reflected in his service treatment records. See August 2010 Statement in Support of Claim (VA Form 21-4138). At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders, 886 F.3d 1356. Here there is no assertion of functional limitation due to hip pain. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v, 2 Vet. App. 223. There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky, 26 Vet. App. 289. Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim for service connection for right hip pain, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 4. Entitlement to service connection for dry eye syndrome The Veteran asserts that his dry eye syndrome began during his first period of service and has continued since that time. First, the Board finds that there is evidence a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's treatment records reflect a diagnosis of dry eye syndrome during the period on appeal. See March 2011 post-service (retirement) treatment records. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's service-treatment records reflect a dry eye syndrome disability. Third, affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports a finding that his dry eye syndrome is related to his active military service. The Veteran was afforded a VA examination in June 2017 that resulted in a negative nexus opinion. The June 2017 VA examiner opined that the Veteran's dry eye syndrome is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the Veteran is 62 years old and there is no way to relate during the 34 years of service the etiology of dry eye nor what relationship this disease of normal aging after age 35 has to do with military service. However, the Board finds that the negative nexus opinion is inadequate and although appears to acknowledge in-service onset, provides a negative nexus because it is a disease of normal aging and concludes that it is therefore the disability is not related to his active military service. The examiner does not adequately apply the laws pertaining to service connection. The record is not clear as to continuity of symptoms of the Veteran's dry eye syndrome. However, affording him the benefit of the doubt, despite the noted credibility issues above, the Board finds that the Veteran's dry eye syndrome began during his active military service and has continued since that time. Accordingly, entitlement to service connection for dry eye syndrome is granted; HOWEVER, this is not a grant of a separate and compensable disability rating and the Veteran's dry eye syndrome shall be incorporated into his other service-connected eye disabilities, that will be addressed later in this decision. 5. Entitlement to service connection for hypertension The Veteran asserts that he does not have a diagnosis of hypertension. See March 2020 Board hearing transcript, page 18 of 27. The Board finds that the evidence persuasively weighs against a finding of a current disability of hypertension. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen v. Brown, 8 Vet. App. 374 (1995). As noted above, the Veteran asserts that he does not have a diagnosis of hypertension. See March 2020 Board hearing transcript, page 18 of 27. Furthermore, the record does not contain evidence of a diagnosis of hypertension. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders, 886 F.3d 1356. Here there is no assertion of functional limitation due to hypertension. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer, 2 Vet. App. 223. There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky, 26 Vet. App. 289. Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim for service connection for hypertension, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 6. Entitlement to service connection for right ear hearing loss disability The Veteran asserts that he is entitled to service connection for right ear hearing loss. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). As addressed in greater detail below, the Veteran was afforded a VA examination in January 2014, which diagnosed right ear hearing loss disability for VA purposes. See January 2014 VA examination, p. 2. However, the subsequent July 2017 VA examiner found that the Veteran no longer had hearing loss in the right ear. See July 2017 VA examination, p. 4. For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the authorized audiological evaluation in January 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 25 25 20 25 LEFT 25 25 25 20 25 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. On the authorized audiological evaluation in June 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 20 LEFT 25 25 20 25 25 Speech audiometry revealed speech recognition ability of 100 percent bilaterally. From January 2014 to June 2017, the Veteran's hearing test results (especially at the 500 Hertz level in the right ear and word recognition scores), demonstrate that there has been considerable improvement in the Veteran's audiological test results. However, as there is a VA examination audiological test during the period on appeal with hearing loss for VA purposes (40 dB at 500 Hertz), the Board finds that the Veteran has had a current right ear hearing loss disability during the period on appeal. Second, affording the Veteran the benefit of the doubt, the Board finds that there was in-service hazardous noise exposure (although not specifically related to his military occupational specialty). See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran reports in-service hazardous noise exposure of artillery fire, weapons fire, and cannon blasts while serving as a surgical nurse. Third, the Board finds that the evidence of record does not support a finding that the Veteran's right ear hearing loss is related to active service. As noted above, the Veteran was afforded VA examinations in January 2014 and July 2017. Although the January 2014 VA examiner found that the Veteran had hearing loss in the right ear for VA purposes, he opined that the Veteran's right ear hearing loss was less likely than not (less than 50 percent probability) due to hazardous noise exposure because the Veteran exhibited mild low frequency hearing loss and this type of hearing impairment is not indicative of a noise-induced hearing loss and concluded that the Veteran's hearing loss was therefore not due to hazardous noise exposure. In contrast, the July 2017 VA examiner did not find that the Veteran had right ear hearing loss for VA purposes and simply concluded that there was no diagnosis of hearing loss. Accordingly, entitlement to service connection for right ear hearing loss disability is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim for service connection for right ear hearing loss disability, the doctrine is not for application. Gilbert, 1 Vet. App. 49. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 7. Entitlement to a disability rating in excess of 20 percent for plantar fasciitis of the left foot The Veteran asserts that he is entitled to a higher disability rating for his plantar fasciitis of the left foot. The Veteran's plantar fasciitis of the left foot is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. Under Diagnostic Code 5276, a noncompensable disability rating is warranted for mild acquired flatfoot; symptoms relieved by built-up shoe or arch support. A 10 percent disability rating is warranted for moderate acquired flat foot; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral. A 20 percent disability rating is assigned for severe unilateral acquired flat foot; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A 30 percent disability rating is warranted for pronounced unilateral acquired flatfoot; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Historically, as in the present case, plantar fasciitis has been rated by analogy, under Diagnostic Code 5276. However, effective February 7, 2021, VA amended the rating schedule by adding Diagnostic Code 5269 for plantar fasciitis. Plantar fasciitis is rated under the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries. Under Diagnostic Code 5269, a 30 percent disability rating is warranted for plantar fasciitis with no relief from both non-surgical and surgical treatment, bilateral. A 20 percent disability rating is warranted for plantar fasciitis with no relief from both non-surgical and surgical treatment, unilateral. A 10 percent disability rating is warranted for all other circumstances, unilateral or bilateral. Note (1): With actual loss of use of the foot, rate at 40 percent. Note (2): If a Veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is appliable. 38 C.F.R. § 4.71a, Diagnostic Code 5269. Since the Veteran is already at the schedular maximum for unilateral plantar fasciitis under the new Diagnostic Code 5269, consideration under Diagnostic Code 5269 is not applicable in the present case and the Board shall continue evaluation under the prior Diagnostic Code of 5276. Therefore, the question for the Board is if the Veteran's plantar fasciitis of the left foot produces marked pronation; extreme tenderness of plantar surfaces of the feet; marked inward displacement; and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran was afforded VA examinations in September 2015. Both the September 2015 VA examiners found that the Veteran's plantar fasciitis of the left foot did not result in marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. However, it was noted that the Veteran used arch supports in his left foot that did not result in improvement. The evidence of record persuasively weighs against a rating in excess of 20 percent for plantar fasciitis of the left foot. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to intermittent left foot pain, mostly triggered by running or occasionally prolonged walking. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that intermittent left foot pain would not result in symptoms more nearly approximating pronounced acquired flatfoot. The record does not reflect that the Veteran's plantar fasciitis of the left foot produced marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the United States Court of Appeals for the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may be rated only under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. Here, the Veteran's disability is specifically listed under the rating schedule since February 7, 2021. However, since the Veteran was granted service connection for his disability by analogy prior to February 7, 2021 and his disability rating would not increase due to these changes, the Veteran shall still be rated under the previous Diagnostic Code. Additionally, the Veteran does have other service-connected left foot disabilities with distinct manifestations that is already service connected under Diagnostic Code 8524. In this regard, Diagnostic Codes 8524 is not applicable. In conclusion, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for plantar fasciitis of the left foot. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 8. Entitlement to a disability rating in excess of 10 percent for Terrien's marginal corneal degeneration with pterygium of the right eye and bilateral allergic conjunctivitis with bilateral dry eye syndrome As a preliminary matter, and as noted above, the Board has granted the Veteran's claim for entitlement to service connection for bilateral dry eye syndrome and incorporated that disability with his other eye disabilities for evaluation purposes. Therefore, this section includes the evaluation of all of his service-connected eye disabilities, including but not limited to his bilateral dry eye syndrome. The Veteran asserts that he is entitled to a higher disability rating than the currently-assigned 10 percent rating. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. The Veteran's eye disabilities are currently rated under Diagnostic Code 6018. As will be discussed in greater detail below, the Board finds that maintaining the Veteran's disabilities under Diagnostic Code 6018 is the most beneficial to the Veteran due to the minimum disability rating of 10 percent for his bilateral conjunctivitis. There is no other relevant Diagnostic Code for the eyes that has a minimum disability rating. Furthermore, all other applicable Diagnostic Codes (including evaluation by analogy of the Veteran's newly service-connected bilateral dry eye syndrome which is also rated by analogy under Diagnostic Code 6018) include the same evaluation criteria under the General Rating Formula for Diseases of the Eye. Diagnostic Code 6018 provides that for active chronic conjunctivitis shall be evaluated under the General Rating Formula for Diseases of the Eye with a minimum evaluation of 10 percent disabling; and inactive chronic conjunctivitis shall be evaluated based on residuals such as visual impairment and disfigurement under Diagnostic Code 7800. Diagnostic Code 6034 provides that pterygium is evaluated under the General Rating Formula for Diseases of the Eye, disfigurement (under Diagnostic Code 7800), conjunctivitis (Diagnostic Code 6018), etc., depending on the particular findings, and combine in accordance with 38 C.F.R. § 4.25. The Board notes that Diagnostic Code 7800 (Note 1) provides for the 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1) scar 5 or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of the scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (30 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (30 square centimeters); and (8) skin indurated and inflexible in an area exceeding six square inches (30 square centimeters). However, the evidence does not show that the Veteran has any of the 8 characteristics of disfigurement for evaluation under Diagnostic Code 7800 and therefore Diagnostic Code 7800 is not applicable. During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye. 83 Fed. Reg. 15316 (April 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image. Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating. Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate the disability based on visual impairment or its rating criteria for incapacitating episodes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. Prior to the May 13, 2018 changes, the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent disability rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability rating is warranted. A Note following the General Rating Formula indicates that, for VA 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. Id. From May 13, 2018; the criteria under the General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. Where documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition in the past 12 months, a 10 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 20 percent disability rating is warranted. Where documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition in the past 12 months, during the past 12 months, a 40 percent disability rating is warranted. Where documented incapacitating episodes requiring 7 or more treatment visits for an eye condition in the past 12 months, during the past 12 months, a 60 percent disability rating is warranted. The Board also notes that the May 2018 changes also included a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009. Specifically, prior to the May 2018 changes, the Note provided "For VA 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." However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009. Note (1) provides "For the purposes of evaluation 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) provides "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) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091. The Board notes that the Veteran does not assert, nor does the evidence reflect that the Veteran has had any incapacitating episodes under either the previous nor current criteria. Therefore, evaluation of the Veteran's eye disabilities shall be conducted based upon visual impairment(s). Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen's test type or its equivalent. 38 C.F.R. § 4.76(a). Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present. 38 C.F.R. § 4.76(b). However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. Id. A September 2015 VA examination reveals that the Veteran had bilateral marginal corneal degeneration, and pterygium of the right eye. 09.15.2015 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/40 or better 20/40 or better 20/200 20/40 or better LEFT 20/40 or better 20/40 or better 20/100 20/40 or better The September 2015 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 10 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 corrected distance bilaterally warrants a noncompensable disability rating. However, Diagnostic Code 6018 provides for a minimum of a 10 percent disability rating. A June 2017 VA examination reveals that the Veteran had no diagnosed disabilities but reported a history of dry eye syndrome. 06.13.2017 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/50 20/40 or better 20/100 20/40 or better LEFT 20/40 or better 20/40 or better 20/100 20/40 or better The June 2017 VA examination also revealed that the Veteran did not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 10 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/40 corrected distance bilaterally warrants a noncompensable disability rating. However, as noted above, Diagnostic Code 6018 provides for a minimum of a 10 percent disability rating. A July 2019 VA examination reveals that the Veteran had bilateral marginal corneal degeneration, and pterygium of the right eye. Furthermore, the Veteran's May 2019 treatment records reflect suspected glaucoma. 07.30.2019 Uncorrected Distance Corrected Distance Uncorrected Near Corrected Near RIGHT 20/200 20/20 or better 20/100 20/20 or better LEFT 20/40 20/20 or better 10/200 20/20 or better The July 2019 VA examination also revealed that the Veteran continues to not have a documented visual field defect. Based on the evidence above, a disability rating in excess of 10 percent for the Veteran's loss of visual acuity is not warranted. The Veteran's visual acuity of 20/20 or better corrected distance bilaterally warrants a noncompensable disability rating. However, as noted above, Diagnostic Code 6018 provides for a minimum of a 10 percent disability rating. Accordingly, the evidence persuasively weighs against the claim of entitlement to a disability rating in excess of 10 percent for a loss of visual acuity. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for the service-connected bilateral eye disability, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 9. Entitlement to a disability rating in excess of 10 percent for sinusitis The Veteran asserts that he is entitled to a higher disability rating for sinusitis. The Veteran's sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6513, for sinusitis, maxillary, chronic. Diagnostic Code 6513, along with Diagnostic Codes 6510 to 6514 are rated under the General Rating Formula for Sinusitis. The General Rating Formula for Sinusitis provides that a 50 percent disability rating is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A 30 percent disability rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 10 percent disability rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A noncompensable disability rating is warranted when detected by x-ray only. A Note under the General Rating Formula for Sinusitis explains that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. The Veteran was afforded VA examinations in September 2015 and July 2019. The September 2015 VA examiner determined that the Veteran did not have current findings, signs, or symptoms, attributable to chronic sinusitis. However, the Veteran reported that he had one non-incapacitating episode within the prior 12 months. The July 2019 VA examiner documented that the Veteran had findings, signs, or symptoms, attributable to chronic sinusitis. Specifically, tenderness of the affected sinus. However, the Veteran reported that he did not have any non-incapacitating episodes nor incapacitating episodes of sinusitis within the previous 12-months. Based on the evidence above, a disability rating in excess of 10 percent for the Veteran's sinusitis is not warranted. The Veteran's sinusitis produced no worse than one (1) non-incapacitating episode of sinusitis with symptoms of no worse than tenderness of the affected sinus. At no time during the period on appeal does the Veteran assert nor does the evidence demonstrate that the Veteran's sinusitis produced three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting nor radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Accordingly, the evidence persuasively weighs against the claim of entitlement to a disability rating in excess of 10 percent for sinusitis. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 10. Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea The Veteran asserts that he is entitled to a higher disability rating for obstructive sleep apnea. The Veteran's obstructive sleep apnea is rated under 38 C.F.R. § 4.97, Diagnostic Code 6847, Sleep Apnea Syndromes (Obstructive, Central, Mixed). Diagnostic Code 6847 provides that a 100 percent disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. A 50 percent disability rating is warranted for requires the use of breathing assistance device such as continuous airway pressure (CPAP) machine. A 30 percent disability rating is warranted for persistent daytime hypersomnolence. A noncompensable disability rating is warranted for asymptomatic but with documented sleep disorder breathing. The Veteran was afforded a VA examination in September 2015. The September 2015 VA examiner determined that the Veteran requires the use of a CPAP machine. However, the Veteran does not assert nor does the evidence reflect that he has chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Accordingly, the evidence persuasively weighs against the claim of entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.