BVA9506545 DOCKET NO. 93-08 857 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than August 14, 1990, for a 60 percent evaluation for enucleation of the right eye and mild cortical and nuclear sclerotic cataract with visual field defect of the left eye. REPRESENTATION Appellant represented by: Clarence F. Rhea, Attorney ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from January 1942 to December 1943. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), granting a 60 percent evaluation for the veteran's enucleation of the right eye and mild cortical and nuclear sclerotic cataract with visual field defect of the left eye (bilateral eye disability), effective from August 14, 1990. Previously, in an August 1991 Board decision, service connection for defective vision of the left eye was granted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an earlier effective date of the 60 percent evaluation for his bilateral eye disability, prior to August 14, 1990, is warranted. It is asserted by the veteran that December 5, 1943, is the appropriate date for the award of the evaluation. It is contended that when he originally filed his claim in 1944 the RO allowed service connection for enucleation of the right eye as well as defective vision of the left eye, effective December 5, 1943. He contends that over the years he was informed by VA that the award of a 40 percent evaluation was the maximum he could receive; however, the VA ignored his service connected left eye disability. It is asserted that his left eye disability was severe enough to warrant a higher disability evaluation years ago and would have, in turn, caused his overall evaluation to be increased to 60 percent. Accordingly, he requests that he be granted a 60 percent evaluation from December 5, 1943, the day following the date of his final separation from active service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on a review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the claim for an earlier effective date of August 9, 1990, for a 60 percent evaluation for a bilateral eye disability. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran did not file a notice of disagreement within one year of notice of an August 1944 rating decision, which confirmed a February 1944 rating decision, allowing a 40 percent evaluation for the veteran's bilateral eye disability; that evaluation was consistent with and supported by the evidence then of record. 3. An increase in the severity of the veteran's bilateral eye disability is shown to have become ascertainable as of August 9, 1990; the veteran filed an application therefor on August 14, 1990. CONCLUSION OF LAW An earlier effective date for an evaluation of 60 percent for the veteran's bilateral eye disability is warranted, effective August 9, 1990. 38 U.S.C.A. §§ 5107, 5110(b)(2), 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.400, Part 4, Diagnostic Codes 6065, 6066 and 6080 (1994) and 38 C.F.R. Part 4, Diagnostic Codes 1851 to 1855 and 3308 (as in effect in 1944). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially finds that the veteran has presented a well- grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible. The undersigned also finds that all relevant evidence has been obtained by the RO, and there is no further duty to assist the veteran in the development of facts pertinent to his claim. Id. I. Background Service medical records reveal that while on maneuvers in England in June 1943, during a demonstration of an antitank mine, the veteran was approximately 25 feet away at the time of an explosion when something struck his right side. Approximately six hours later, a foreign body was removed from the right eye. Enucleation of the right eye was performed approximately six weeks later. The veteran was hospitalized at the Moore General Hospital, Swannanoa, North Carolina, from November to December 1943. An ophthalmologic examination performed in November 1943 found the veteran's vision without correction in his left eye to be 20/30. Muscle balance, associated parallel, tangent curtain findings, and external examination of the left eye were normal. The retina and maculae of the left eye showed no pathology. The examiner noted defective vision in the left eye, mild, cause undetermined, vision 20/30, not correctable. The final diagnosis was eyeball enucleation, right eye, caused by an injury due to antitank mine explosion, and defective vision, left eye, mild, cause undetermined, vision, 20/30, not correctable. The veteran was discharged from active military service as a result of his bilateral eye disability on December 4, 1943. In February 1944 the veteran filed a claim for disability compensation. By February 1944 rating decision, the veteran was awarded a 40 percent evaluation for enucleation of the right eye from December 5, 1943, the day following the date of his final separation from active service. The veteran was also awarded special monthly "pension" as a result of the anatomical loss of one eye from December 5, 1943. The rating determination of February 1944 based its determination on 38 C.F.R. Part 4, Diagnostic Code 3308 (as in effect in 1944). Diagnostic Code 3308, enucleation, one eye without disfigurement beyond wearing an artificial eye, warranted at that time a 40 percent evaluation. With extensive disfigurement, or in the case when the artificial eye cannot be worn, a 50 percent evaluation under Diagnostic Code 3308 was warranted. A few weeks later, in February 1944, the veteran filed a claim of entitlement to service connection for loss of the right eye and partial sight in the left eye. At a July 1944 VA medical examination, the examiner indicated that the veteran had a slight impairment of the left eye as a result of the burn from the explosion which destroyed his right eye. The eyesight in the veteran's left eye was not specified. In an August 1944 rating determination, the rating decision of February 1944 was confirmed and continued. The veteran was notified of this determination and his appellate rights that month, and he did not appeal the determination within one year of receiving notice thereof. In a January 1949 rating decision, the veteran's service connection for "enucleation, right eye vision left eye 20/30," was evaluated under the newly created Diagnostic Code 6066 (effective in 1945). 38 C.F.R. Part 4, Diagnostic Code 6066, warrants a 40 percent evaluation with anatomical loss of one eye and 20/40 corrected vision in the other eye. Special monthly compensation for anatomical loss of one eye was continued. During August 1949, the veteran was hospitalized for the purpose of fabrication of a plastic eye. The eye was received during that period of hospitalization, and was described as satisfactory. By rating decision in January 1955, service connection for an unrelated disability (an ulcerated stomach) was denied. In October 1988, the veteran requested, in part, a higher evaluation for his service-connected eye disability. By rating decision in April 1989, his 40 percent rating was continued under Diagnostic Code 6066. The veteran was notified of this determination by letter in May 1989, as well as his appellate rights, but he filed no appeal therefrom within one year of receipt of such notice. At a February 1989 VA examination, examination of the left eye, uncorrected, revealed a visual acuity of 20/70 and Jaeger, 0. His best corrected vision was reported to be 20/20 and Jaeger, 1, with refractive and presbyopic correction. External examination of the left eye was described as normal. His prosthesis was found to be "well-fitting" in the right eye. The diagnosis was refractive error, presbyopia, and anophthalmos, right, surgical, secondary to trauma. On August 14, 1990 the RO received a letter from the veteran, indicating his left eye condition had become worse. He requested the reopening of his claim for service connection for a left eye disability. The veteran submitted an August 9, 1990 statement from his private optometrist, Dr. Carboni, who indicated that the veteran's left eye revealed corrected vision of 20/60+ with a far-sighted spectacle. Through the use of his bifocal, near vision of 20/40 plus, was found. Examination of the eye found a healthy cornea and a clear anterior chamber. Cortical cataracts were evident. Significantly, his visual field was "executed and found not to be restricted and no scotomas." In an August 1990 rating decision, service connection for a left eye disability was denied. The veteran filed a notice of disagreement in September 1990 and a statement of the case was issued by the RO later that month. The veteran filed a substantive appeal in October 1990. At that time, the veteran indicated that his left eye condition had become worse because his left eye had had to perform "double work" for the past 47 years. In an August 1991 decision, the Board granted the veteran's appeal for service connection for defective vision of the left eye. In a November 1991 VA visual examination, the veteran's corrected vision in his left eye was found as near, Jaeger, 2, and far, 20/25. A nondiagnostic visual field defect was present and charted. The veteran's field of vision was concentrically reduced to less than 20 degrees, with an enlarged blind spot, as well as a scotoma opposite the blind spot. Examination of the left eye revealed a mild cortical and nuclear sclerotic cataract present. Funduscopic examination revealed a slightly decreased macular reflex. The prosthesis on the right eye was well fitting and apparently causing no difficulty. The intraocular tension was 15 in the left eye. The final diagnosis was refractive error, presbyopia, cataract, mild, cortical and nuclear sclerotic, left eye, visual field defect, left, and anophthalmos, right, surgical. In a December 1991 rating decision, the veteran's enucleation, right eye, with mild cortical and nuclear sclerotic cataract and visual field defect, left eye, was evaluated under 38 C.F.R. Part 4, Diagnostic Code 6065 as 60 percent disabling. The 60 percent evaluation was determined effective from August 14, 1990, the date the RO received the veteran's claim for a left eye disability. II. Analysis The veteran contends that he is entitled to an effective date for the 60 percent evaluation of his bilateral eye disability from December 5, 1943, the day following the date he was actually discharged from active service. In order to prevail, the undersigned must find clear and unmistakable error in the February 1944 rating decision, confirmed by the RO in an August 1944 rating decision, which granted the veteran a 40 percent evaluation for enucleation of the right eye. The United States Court of Veterans Appeals (Court) has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination: (1) "[E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet.App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) en banc). A finding of clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet.App. 228, 231 (1991). On the basis of the evidence of record at the time the February 1944 rating determination was reached, the undersigned finds that an error was made in this decision. Service medical records clearly reveal that the veteran suffered from defective vision in his left eye of 20/30 as the result of the injury which caused his right eye injury. This error was corrected by the RO in the January 1949 rating decision when it changed the veteran's service-connected disability from "enucleation, right eye," to "enucleation, right eye, with vision of left eye at 20/30." It was at this time that the RO, in effect, found error in the February and August 1944 rating determinations. The undersigned finds no error in the January 1949 rating determination which properly service connected the veteran's left eye disability and accurately evaluated the veteran's condition based on the VA's Schedule of Disability Evaluations in effect at that time and currently. The next issue the undersigned must address, the second prong of the three pronged test under Damrel, is whether the errors found in the rating determinations of February and August 1944 would, if they had not been made, manifestly change the outcome of the veteran's evaluation at the time they were made. Damrel at 245. In order to make this determination, the undersigned must make an independent evaluation of the veteran's bilateral eye disability based on the evidence of record at the time the February and August 1944 rating determinations were reached. Further, the undersigned must base any determination on the law that existed at the time of the prior adjudication in question. The residuals of the veteran's bilateral eye disability as they existed in February and August 1944 included enucleation of the right eye and defective vision of the left eye, mild, with vision at 20/30, not correctable. This determination is based on the service medical examination of November 1943, performed approximately four months before the February 1944 evaluation. The veteran was awarded a 40 percent evaluation under 38 C.F.R. Part 4, Diagnostic Code 3308 (as in effect in 1944), for enucleation, one eye, without disfigurement beyond wearing an artificial eye. With extensive disfigurement or when the artificial eye cannot be worn, a 50 percent evaluation under Diagnostic Code 3308 was warranted. The evidence, however, reveals no extensive disfigurement and no difficulties associated with the use of his artificial eye. Under Diagnostic Code 3308, when the veteran's other eye has visual defects, the rating evaluator was to use the bilateral evaluations chart under Diagnostic Codes 1851 to 1855 (as in effect in 1944), assume that the removed eye had a visual acuity of 5/200, and add an additional 10 percent for a cosmetic defect. Id. Under the rating table for a bilateral eye disability in 1944, when vision in one eye has a visual acuity 5/200, a 30 percent evaluation is warranted when the second eye has a visual acuity of 20/40. A 40 percent evaluation is warranted when the vision in the other eye is 20/50. In the veteran's case, at this time in 1944, he had a visual acuity of 20/30 in his left eye. Accordingly, at most, under 38 C.F.R. Part 4, Diagnostic Code 1855 (as in effect in 1944), the veteran would be awarded a 30 percent evaluation with an additional 10 percent, a 40 percent total evaluation. Simply stated, the veteran's left eye disability, if associated with the rating determination of February and August 1944, would not have increased the veteran's total disability evaluation at that time. The veteran's left eye disability, with a visual acuity of 20/30, while below normal, would not warrant an increase in the veteran's total evaluation at that time. The undersigned must note that the November 1943 ophthalmologic examination found no evidence of any other disability in the veteran's left eye other than defective vision of 20/30, not correctable. In January 1949, the veteran's evaluation, which now included his left eye disability, was evaluated under the a new diagnostic code which is currently in use by VA, 38 C.F.R. Part 4, Diagnostic Code 6066 (1994). Under this evaluation, a veteran with an anatomical loss of one eye and 20/40 visual acuity in the other eye warrants a 40 percent evaluation. Id. No 30 percent evaluation is listed. The use by the RO of the new diagnostic code, 6066, increased the evaluation under the bilateral eye chart he would receive for anatomical loss of one eye, with 20/30 vision, from 30 to 40 percent (a 30 percent disability evaluation was no longer listed), even though the veteran's eyesight in his left eye was better than 20/40. The new rating schedule, however, removed the additional 10 percent evaluation for a cosmetic defect under Diagnostic Code 3308 (as in effect in 1944). The January 1949 rating evaluator was no longer required to add an additional 10 percent for a cosmetic defect using the bilateral eye chart under Diagnostic Code 3308. Instead, a new chart had been composed which took into consideration a veteran with a bilateral eye disability and the anatomical loss of one eye. The veteran continued to receive special monthly compensation for anatomical loss of one eye within all of the rating determinations since 1944. Thus, the changes in the diagnostic codes under 3308 in 1944 and 6066 in 1949 did not affect the veteran's overall evaluation. After the January 1949 rating decision, however, the RO appears to have overlooked the fact that the veteran was service connected for a left eye disability until they were reminded by Board decision in August 1991. The fact that the veteran should have been awarded service connection for a left eye disability continuously from December 5, 1943, to the present is not in dispute. With regard to the veteran's contention, however, that he should have been awarded a 60 percent evaluation since December 5, 1943, the VA Schedule for Rating Disabilities, at no time from December 1943 to August 1990, would warrant such a finding. A 60 percent evaluation for the veteran's bilateral eye disability in 1945 would have been warranted under 38 C.F.R., Part 4, Diagnostic Code 6065 (as in effect from 1945 to the present) if the veteran's vision in his left eye was 20/70. No evidence during this period of time would support such a finding. In fact, on VA medical examination of the left eye in February 1989, his corrected vision was 20/20 with normal funduscopic examination and full confrontation field on the left. The veteran's vision is evaluated on the basis of corrected vision. 38 C.F.R. § 4.75 (1994). Thus, the evidence is insufficient for a finding that the veteran's disability had increased to the point of warranting a 60 percent evaluation under Diagnostic Code 6065 until the veteran specifically claimed to have an increase in disability to his left eye in August 1990. It is significant that the veteran indicated in written statements sent to the RO in August 1990 and April 1993 that his left eye condition had worsened. This reveals that the veteran's left eye disability, as viewed by the veteran, was less disabled in the 1940's than it is currently. This fact appears amply evident from the findings noted during the February 1989 VA medical examination of his left eye. Further, it is only after the August 9, 1990 statement from the veteran's optometrist and the findings from the November 1991 VA examination that it becomes evident that the medical evidence supports the conclusion that the veteran has a visual field deficit in his left eye to less than 20 degrees. This is significant, as under 38 C.F.R. Part 4, Diagnostic Code 6080, a veteran with a visual concentric contraction of from 30 degrees but not to 15 degrees is to be rated as if the vision in that eye was 20/100. Under the bilateral eye disability chart with the anatomical loss of one eye, 38 C.F.R. Part 4, Diagnostic Codes 6063 to 6066 (1994), a veteran with the anatomical loss of one eye and a visual acuity of 20/100 would warrant a 60 percent evaluation under Diagnostic Code 6065. Once again, the veteran's own contentions that his left eye disability had worsened in the 1990's support this evaluation. Unfortunately for the veteran, it also supports the conclusion that the veteran's disability in the 1940's to the 1980's was less disabling than it is today. It would also fail to support a finding that "clear and unmistakable error" was made in the February and August 1944 rating decisions. These rating determinations, while flawed in the failure to take into consideration the veteran's left eye disability, would not change the veteran's award of benefits. A 40 percent evaluation would have been assigned had the veteran's left eye disability been considered. See 38 C.F.R. Part 4, Diagnostic Code 1855 (as in effect 1944). In effect, therefore, it was harmless error. A finding of clear and unmistakable error having not been found in the February 1944, August 1944, January 1949, or in any rating decision since, the veteran would be entitled to an increased evaluation in his service-connected eye disability no earlier than the date of receipt of his filing his claim for an increased evaluation for this disability on August 14, 1990. 38 U.S.C.A. § 5110(a) (West 1991). In addition to the foregoing, the Board has considered all potentially applicable provisions of the rating schedule, as it was in effect in 1944 and to the present, and in so doing it is noted that 38 U.S.C.A. § 5110(b)(2) provides: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. See also 38 C.F.R. § 3.400(o)(2) (1994) (to the same effect). As the fact that the veteran's left eye vision had deteriorated to 20/60+ (warranting a 60 percent evaluation under Diagnostic Code 6065) became ascertainable on August 9, 1990 with the receipt of Dr. Carboni's statement of that date, and the veteran applied for increase within one year thereafter, technically that is the correct effective date assignable under the facts in this case. ORDER Entitlement to an earlier effective date for a 60 percent evaluation for the veteran's enucleation of the right eye with mild cortical and nuclear sclerotic cataract and visual field defect of the left eye, effective from August 9, 1990, is granted, subject to the governing regulations pertaining to the payment of monetary benefits. J.F. GOUGH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.