10-11 770
10-11 770
| Board of Vet. App. | Nov 30, 2017Background
- Veteran served on active duty 1992–1998 and was granted service connection for "dry eyes, status-post lacrimal tube implant" (May 2007 rating decision).
- Veteran disputed the noncompensable rating and submitted a VA Form 9 (treated as a new claim for increase) on January 9, 2009; VA provided exams in April 2009 and May 2017.
- April 2009 and May 2017 exams documented bilateral dry-eye symptoms (tearing, itching, blurred vision relieved by blinking or artificial tears); some intermittent unilateral complaints earlier.
- RO awarded a 10% rating in June 2009; Veteran appealed for a higher rating and an earlier effective date.
- Board remanded in 2012 for further development; later found adequate compliance and medical evidence.
- Board concluded symptoms were analogous to a bilateral lacrimal apparatus disorder and assigned the highest available rating under DC 6025.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Entitlement to rating in excess of 10% for dry eyes (DC 6025) | Veteran argued symptoms warrant >10% (bilateral involvement) | VA/R0 maintained 10% or less based on records | Granted: 20% from Jan 9, 2009 (bilateral lacrimal apparatus disorder) |
| 2) Earlier effective date for compensable rating (prior to Jan 9, 2009) | Veteran sought effective date earlier than Jan 9, 2009 | VA argued Jan 9, 2009 is earliest claim date and no ascertainable increase in prior year | Denied: No entitlement to effective date earlier than Jan 9, 2009 |
Key Cases Cited
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (duties regarding claims for increased ratings after service connection)
- Suttman v. Brown, 5 Vet. App. 127 (1993) (analogous ratings may be assigned only for unlisted conditions)
- Stegall v. West, 11 Vet. App. 268 (1998) (requirement of compliance with Board remand directives)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (adequacy standard for VA medical examinations)
- Pernorio v. Derwinski, 2 Vet. App. 625 (1992) (choice of diagnostic code depends on medical history and symptomatology)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (general policy considerations in applying rating schedule)