Citation Nr: 25005346 Decision Date: 04/21/25 Archive Date: 04/21/25 DOCKET NO. 15-37 638 DATE: April 21, 2025 ORDER Entitlement to an initial evaluation in excess of 10 percent for dry eye syndrome is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent for left shoulder strain prior to May 23, 2016, is remanded. Entitlement to an initial evaluation in excess of 20 percent for left shoulder strain from May 23, 2016, is remanded. FINDING OF FACT During the course of the present claim and appeal, the Veteran's dry eye syndrome was active with objective findings of dry eye, blurry vision, and reduced tear breakup time (TBUT), but not incapacitating episodes or any visual impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 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 6099-6018. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1992 to February 2013. These matters come to the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2021. A transcript of the hearing is of record. In a January 2023 decision, the Board granted entitlement to an initial 10 percent disability evaluation for dry eye syndrome; entitlement to an initial 10 percent disability evaluation for a left shoulder strain prior to May 23, 2016; entitlement to an initial 10 percent disability evaluation for bilateral plantar fasciitis prior to February 7, 2021; and entitlement to an initial 30 disability evaluation for bilateral plantar fasciitis from February 7, 2021. The Board denied entitlement to an initial disability evaluation in excess of 20 percent for a left shoulder strain from May 23, 2026. The Veteran appealed all but the Board's award of an initial 30 disability evaluation for bilateral plantar fasciitis from February 7, 2021, to the Court of Appeals for Veterans Claims (Court). In an October 2023 Order, the Court vacated and remanded these matters to the Board pursuant to the parties' Joint Motion for Partial Remand (JMPR). In February 2024, these matters were last before the Board, when they were remanded for further development. But for the claims remanded herein, that development was completed. Entitlement to an initial evaluation in excess of 10 percent for dry eye syndrome. The Veteran filed her claim prior to separation and was awarded service connection for dry eye syndrome effective the day following discharge, March 1, 2013. Thus, this marks the beginning of the period on appeal. 38 C.F.R. § 3.400. The Veteran seeks an evaluation in excess of 10 percent for her dry eye syndrome. A10 percent evaluation for bilateral dry eye has been assigned under 38 C.F.R. § 4.79, Diagnostic Code 6099-6018, by analogy. At her June 2021 Board hearing, she related that her dry eye syndrome manifested by dry eyes and the need to use eye drops consistently throughout the day. She noted that she twice had an eye infection. She stated that she had painful and itchy eyes during these incidents. The Veteran's dry eye syndrome is currently evaluated under Diagnostic Code 6099-6018. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Regulations provide that, when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury, in which both the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Diagnostic Code 6099 conveys that the Veteran's service-connected dry eye syndrome is not listed in the Rating Schedule and is therefore rated by analogy to the criteria for chronic conjunctivitis. Given the Veteran's descriptions of her eye symptoms attributed to dry eye syndrome, the diagnosis of dry eye syndrome and the ongoing symptoms associated with her eye condition, the Board finds that an analogous rating under Diagnostic Code 6018, for chronic conjunctivitis is appropriate due to the diagnosis of dry eye syndrome, her medical history, and the symptoms disclosed in the records and VA examinations (i.e. gritty eyes, blurred vision, reduced tear breakup time (TBUT) and a need for eye drops). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. 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. 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, as warranted, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish active and inactive disease processes. Under the former criteria, an active disease process (with objective findings, such as red, thick conjunctivae, mucous secretion, etc.) is assigned a 10 percent rating. Under the revised criteria, an active disease process is rated pursuant to the General Rating Formula for Diseases of the Eye, with a minimum rating of 10 percent. For an inactive disease process, both the former and revised criteria instruct to evaluate based on residuals, such as visual impairment (which includes visual field defects) and disfigurement (Diagnostic Code 7800). Regarding visual impairment, the May 2018 amendments made no substantive changes to how visual acuity is rated. Regarding visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Prior to the May 2018 amendments, the General Rating Formula for Diagnostic Codes 6000 through 6009 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. 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 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 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 rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent 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. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where 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) indicates 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, Diagnostic Codes 6061-6091. Regarding incapacitating episodes, the Board notes that the Veteran has never received any surgical treatment, and has neither been prescribed bed rest and treatment, nor received treatment that may be considered an incapacitating episode. Notably, VA and non-VA treatment records reflect that the Veteran has been using eye drops as directed but has never had any additional treatment that would be considered an incapacitating episode for purposes of § 4.79. The examples listed under § 4.79 suggest an implicit requirement that a qualifying "treatment" must require administration by a physician or otherwise implicate a certain severity of potential side effect: "systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions." 38 C.F.R. § 4.79. Consequently, eye drops to be used as directed on an outpatient basis do not qualify as "treatment" as defined by § 4.79. The Board also notes that the Veteran's VA examinations also found no incapacitating episodes attributable to any eye conditions. There is thus no basis under the General Rating Formula for a higher rating based on incapacitating episodes. 38 C.F.R. § 4.79. In reaching this conclusion, the Board has considered the Veteran's argument that the prescription of Carboxymethylcellulose (artificial tears), blurred vision, treatment with eye drops eight to ten times per day and having sought treatment in March, May, and August 2021 should be considered as incapacitating episodes, under the old and new criteria. However, under the old criteria, an incapacitating episode required the prescription of bed rest. The Veteran has never been prescribed bed rest by a physician due to her dry eye syndrome. Under the new criteria, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. In other words, the visit to a provider must involve an actual treatment or procedure administered by a physician. Here, while a medical provider has prescribed eye drops, the condition was not severe enough to require a clinic visit for a provider to administer them, or any other treatment, notwithstanding that the condition caused blurred vision on occasion. The artificial tears, regardless of whether they are a "biologic," did not require a visit to a clinic to administer. Nor is there any indication of side effects of such severity that the Veteran was incapacitated from using eye drops. On the contrary, they seem to relieve her symptoms. Dry eye syndrome has never resulted in an incapacitating episode. The Board has considered whether, under the General Rating Formula for Disease of the Eye, an evaluation in excess of 10 percent would be warranted. However, as outlined above, the Veteran's dry eye disability does not involve any visual impairment and has never resulted in any incapacitating episodes, as defined by regulation. Id. Thus, an evaluation in excess of 10 percent is not warranted. Again, the Board notes the appellant's assertion that the blurred vision equates to visual impairment, either of acuity or visual fields; however, the Board does not conclude that occasional blurred vision warrants consideration under visual impairment. There is no indication of any visual impairment in the record. VA examinations in April 2013, April 2022, and April 2024 showed no visual field impairment. No evidence otherwise indicates any visual impairment. It is notable to the Board that the Veteran's worst corrected visual acuity is 20/40, bilaterally. An April 2013 VA Eye Conditions Disability Benefits Questionnaire (DBQ) and a March 2021 non-VA record document 20/40 uncorrected vision. At the most recent VA examination in April 2024, the Veteran had 20/20 or better corrected vision. At no point has the Veteran's visual acuity been worse than 20/40 corrected bilaterally. Lastly, the Board notes the appellant's argument that a higher rating is warranted because, as this disability is rated by analogy, the Veteran is not specifically bound by the language of Diagnostic Code 6018. Stankovich v. Nicholson, 19 Vet. App. 470, 472 (2006). However, while dry eye is not listed as a specific condition in the rating schedule, it is analogous in its symptoms to conjunctivitis to the extent that both involve eye symptomatology, such as dry, gritty, and blurry eyes, treated with eye drops, and each affect the same function, i.e., vision, and anatomical area, i.e., the eyes. As outlined above, involvement of the lacrimal apparatus was ruled out, thus making Diagnostic Code 6025 non-analogous. Dry eye in this case is best rated as analogous to conjunctivitis. Butts, supra. ? REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent for left shoulder strain prior to May 23, 2016. Entitlement to an initial evaluation in excess of 20 percent for left shoulder strain from May 23, 2016. In February 2024, the Board remanded these claims to afford the Veteran a new VA examination to ascertain the severity of the service-connected left shoulder disability, including on a retrospective basis. In March 2024, the Veteran was afforded a VA examination. Range of motion of the left shoulder was full on objective examination; however, the examiner remarked that the Veteran experienced pain with lifting objects overhead but did not specify at which point pain began. In December 2024, VA attempted to obtain the requested retrospective medical opinion. However, the examiner remarked that they could not provide an opinion on the severity of the left shoulder disability prior to May 23, 2016, without resorting to speculation because there were no records showing the severity of the left shoulder disability during this period. The examiner further explained that there were no flares and active and passive range of motion were full on examination. Apparently recognizing the insufficiency of the examiner's opinions, VBA obtained a February 2025 clarifying addendum regarding flare-ups as the Veteran had reported them during an April 2013 VA examination, as well as information regarding range of motion in weight- and non-weightbearing. The examiner responded that the record did not "specify range of motion during a flare-up" and that it is only possible to test range of motion actively and passively in the shoulder. Without apparently examining the Veteran, the examiner remarked that the Veteran experienced shoulder pain at 90 degrees of forward flexion, 90 degrees of abduction and 55 degrees of internal and external rotation. Once VA provides an examination, it must be adequate, or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim. Douglas v. Shinseki, 23 Vet. App. 19 (2009). The examination and addendum opinions are insufficient. First, the examiner's explanation that they could not provide a retrospective opinion because there was no medical evidence of record during that period is inadequate. The point of the retrospective opinion is to obtain evidence from other sources, including lay sources such as the Veteran, to render an informed opinion. See Chotta v. Peake, 22 Vet. App. 80, 84. Secondly, the March 2024 examination is inadequate in that it fails to specify at which point the Veteran experienced pain with lifting objects overhead. Lastly, while the examiner offered range of motion metrics in February 2025, it is unclear whether these metrics are current or retrospective or whether they represent range of motion during flare-ups or in non- or weight-bearing. Accordingly, the claims are remanded. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of the left shoulder disability. The examiner is asked to provide a retrospective opinion concerning the severity of this disability prior to May 23, 2016. In offering the requested retrospective opinion, the examiner is advised that in addition to medical evidence, other forms of evidence, particularly the Veteran's lay reports of symptomatology and limitation of function, should be considered. The Veteran is competent to provide information regarding visible or otherwise observable symptoms. The examiner must obtain a history from the Veteran regarding her observations of symptoms. The Veteran's claims file must be made available for review prior to the examination and the examination report should reflect that this review was accomplished. All testing deemed necessary to rate the Veteran's disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain; it is not sufficient merely to indicate whether pain was present during one of the required range of motion tests. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. The examiner should address both ankylosis and functional ankylosis in evaluating the disability. The examiner is advised that when evaluating a disability under the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, (2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). NOTE: In so doing, the examiner must, to the extent possible, discount any ameliorating effects of medication and so indicate that such effects were not considered and were in fact discounted in making opinions pertaining to range of motion and functional impairment. (Continued on next page) A rationale for the opinions in the examination report must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. Jenna Brant Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.