Citation Nr: 22019965 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 13-25 208A DATE: April 3, 2022 ORDER A disability rating higher than 20 percent for bilateral dry eye syndrome is denied. REMANDED Entitlement to a disability rating higher than 30 percent for right orbital fracture residuals with photophobia, to include on an extraschedular basis, from November 14, 2019 is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's bilateral dry eye syndrome has been rated at the maximum schedular rating available for disorders of the lacrimal apparatus; a referral for an extraschedular evaluation is not warranted. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for bilateral dry eye syndrome are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.75-4.78, 4.79, Diagnostic Code 6025. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1980 to May 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were most recently remanded by the Board in September 2021. In November 2016, the Veteran testified at a videoconference Board hearing before the undersigned. The Board's September 2021 remand directed the RO to afford the Veteran a new VA eye examination to assess the currently severity of his service-connected eye disabilities. The Board finds that there has been substantial compliance with its September 2021 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Higher Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity caused by a given disability. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. However, if different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Entitlement to a disability rating higher than 20 percent for bilateral dry eye syndrome In its September 2021 decision, the Board granted a separate 20 percent disability rating for eye tearing and remanded the matter for a new VA examination to assess the current severity of this disability. Under Diagnostic Code 6025, a maximum 20 percent rating is warranted for disorders of the lacrimal apparatus when there is bilateral involvement. 38 C.F.R. § 4.79, Schedule of ratings eye. 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. Upon review of the relevant evidence, the Board determines that disability rating higher than 20 percent for bilateral dry eye syndrome is not warranted. Here, the November 2021 VA examiner diagnosed the Veteran with a bilateral lacrimal gland and lid disorder, specifically, bilateral dry eye syndrome, associated with tearing in the eyes, which warrants a 20 percent rating under Diagnostic Code 6025. As the Veteran is already in receipt of the maximum schedular rating under Diagnostic Code 6025, his claim for a disability rating higher than 20 percent for bilateral dry eye syndrome on a schedular basis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered whether the schedular evaluation is inadequate, thus requiring referral of the case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation to commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular rating is adequate, and referral is not required. Id.; 38 C.F.R. § 3.321(b)(1). Here, the schedular evaluation of the Veteran's bilateral dry eye syndrome is adequate. His bilateral dry eye syndrome has been assigned the maximum 20 percent rating under the schedular rating criteria. While the Board acknowledges the Veteran's report that his bilateral dry eye syndrome requires use of over-the-counter artificial tear drops, the only symptom of his bilateral dry eye syndrome is dry eyes, which is contemplated by the rating criteria. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In conclusion, the Veteran's claim for a disability rating higher than 20 percent for bilateral dry eye syndrome is denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to disability rating higher than 30 percent for right orbital fracture residuals with photophobia, to include on an extraschedular basis, from November 14, 2019 is remanded. Pursuant to the Board's September 2021 remand directives, the Veteran underwent an additional VA eye examination in November 2021. The examiner indicated the presence of a documented visual field defect, with a scotoma affecting at least one-quarter of the Veteran's right eye visual field. Additionally, the examiner noted that more specialized testing was needed to determine the cause of the Veteran's visual field defect. The Board notes that the evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye. However, under 38 C.F.R. § 3.383(a), compensation is payable for the certain combinations of service-connected and non-service-connected disabilities, as if both disabilities were service-connected, provided the non-service-connected disability is not the result of the veteran's own willful misconduct. With respect to the eyes, this applies when there is impairment of vision in one eye as a result of service-connected disability, and impairment of vision in the other eye as a result of nonservice-connected disability, and the impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or the peripheral field of vision for each eye is 20 degrees or less. 38 C.F.R. § 3.383(a)(1). Here, the November 2021 VA examiner found evidence of a visual field defect, indicating that further specialized testing was needed to determine the etiology and the severity of the defect. The record does not reflect that such testing was performed following the November 2021 VA examination. As the etiology of any diagnosed visual field defect is unclear, the Board cannot make a fully-informed decision on the issue of an increased rating for the Veteran's right eye disability. Therefore, a remand is necessary to obtain an addendum opinion clarifying whether any diagnosed visual field defect is a symptom that is attributed to the Veteran's service-connected right orbital fracture residuals with photophobia or whether any diagnosed visual field defect is proximately due to or aggravated by the Veteran's service-connected right eye disability. The matter is REMANDED for the following action: 1. Return the claims file to the November 2021 optometrist, if available, otherwise, to an appropriate medical professional, to obtain an addendum opinion regarding the etiology of any diagnosed visual field defect, to include right eye scotoma. The Veteran's electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: a. Is any diagnosed visual field defect, to include right eye scotoma, a symptom that is attributed to the Veteran's service-connected right eye orbital fracture residuals with photophobia? b. If not, is it at least as likely as not (a 50 percent probability or greater) that any diagnosed visual field defect, to include right eye scotoma, is proximately due to or caused by the Veteran's service-connected right eye orbital fracture residuals with photophobia? c. If not, is it at least as likely as not (a 50 percent probability or greater) that any diagnosed visual field defect, to include right eye scotoma, underwent any incremental increase in disability, regardless of its permanence, due to the Veteran's service-connected right eye orbital fracture residuals with photophobia? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. If the requested opinions cannot be provided without a new examination, one should be scheduled, to include performing all testing deemed necessary by the examiner regarding any diagnosed visual field defects. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.