BVA9504181 DOCKET NO. 93-09 331 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased rating for a traumatic cataract in the left eye, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from October 1959 until December 1964. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his left eye disability is such that a 30 percent disability rating is warranted. He asserts that the vision in his left eye has worsened and that he now has glaucoma in his left eye. 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 its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased rating for a traumatic cataract in the left eye. FINDINGS OF FACT 1. The veteran has had no cataract surgery on his left eye. 2. A traumatic cataract in the left eye is shown by 1 plus nuclear sclerosis with some anterior and cortical changes indicative of a cataract and manifested by uncorrected vision of 20/70 which is correctable to 20/40 for both near and distant vision. 3. A traumatic cataract in the left eye has been continuously rated at or above a 10 percent evaluation for more then twenty years. CONCLUSION OF LAW A left eye traumatic cataract is no more than 10 percent disabling, on a schedular or extraschedular basis, and is protected. 38 U.S.C.A. §§ 110, 1155, 1160, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.383, 3.951, 4.1, 4.41, 4.75, 4.84a, Diagnostic Code 6079 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). Factual Background A review of the records show that the veteran was struck in the left eye with a door spring while on active duty. He was subsequently seen on several occasions for complaints of blurred vision. The eye examination portion of his separation from active duty physical found that vision in his left eye was 20/20. He filed his original claim for an eye disability in September 1971 and underwent an eye examination at a VA facility in early 1972. The physical examination found no external damage to the left eye but an eye examination found a cataract in the left eye and visual acuity of 20/80 that was not correctable. In a rating decision dated in September 1972, the RO granted service connection for a left eye cataract and assigned the disability a 20 percent rating, effective from September 1971. In July 1978, the veteran underwent a VA examination of his left eye for evaluation purposes. The results of the examination showed that his left eye had visual acuity of 20/50 that was not correctable. Visual acuity of the right eye was 20/30 and was correctable to 20/20. The RO, in a rating decision dated in August 1978, decreased the rating for the left eye from 20 to 10 percent, effective from November 1978. He appealed the decision and was afforded another VA examination in January 1979. That examination noted the cataract in the left eye and found that uncorrected vision was 20/100 correctable to 20/70. The right eye had visual acuity of 20/30, both uncorrected and corrected. Based on the results of multiple medical examinations, the Board, in an August 1979 decision, denied the veteran more than a 10 percent rating for his left eye cataract disability; that rating has been effect ever since. Analysis The VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.41 (1994). Under the VA's Schedule for Rating Disabilities, a preoperative cataract that was due to trauma is rated on impaired vision, under Diagnostic Code (Code) 6027. 38 C.F.R. § 4.84a (1994). In determining ratings for visual disability, where only one eye is service connected, as in the veteran's case, and in the absence of complete blindness, the other eye is evaluated as normal (20/40). 38 U.S.C.A. § 1160 (West 1991); 38 C.F.R. § 3.383 (1994). Also, the best distant vision obtainable after best correction by glasses will be the basis of rating. 38 C.F.R. § 4.75 (1994). The VA's Schedule for Rating Disabilities notes that corrected visual acuity of 20/40 (6/12) in one eye warrants a noncompensable evaluation when corrected visual acuity in the other eye is also 20/40 (6/12). Corrected visual acuity of 20/50 (6/15) in one eye warrants a 10 percent evaluation when corrected visual acuity in the other eye is either 20/40 (6/12) or also 20/50 (6/15). A 10 percent evaluation is warranted when one eye has corrected visual acuity of 20/70 (6/21) and the other eye has corrected visual acuity of 20/40 (6/12) or 20/50 (6/15). Finally, a 10 percent evaluation is warranted if one eye has corrected visual acuity of 20/100 (6/30) and the other has corrected visual acuity of 20/40 (6/12). 38 C.F.R. § 4.84a, Codes 6078, 6079 (1994). The veteran's VA examination report of December 1992 shows uncorrected visual acuity of 20/60 in the left eye and 20/40 in the right eye. Visual acuity was correctable to 20/40 in the left eye and 20/25 in the right eye. No glaucoma was diagnosed. The veteran underwent another VA examination in February 1993 which found that the left eye had uncorrected visual acuity of 20/70, correctable to 20/40. The right eye had uncorrected visual acuity of 20/60, correctable to 20/25. There was mild peripheral depression in the left eye. Pupillary examination was unremarkable. There was 1 plus nuclear sclerosis in the left eye with some anterior and cortical changes indicative of a cataract. Intraocular pressure was 27 in the left eye and 12 in the right eye. The diagnoses were left eye cataract and increased intraocular pressure of the left eye. The examination findings do not include a diagnosis of glaucoma. The examination report does note that the veteran has had no prior left eye surgery and that he was taking no eye medication. Multiple examinations of the veteran's left eye note a cataract but fail to show visual acuity that meets the criteria for a compensable schedular rating as outlined earlier in this decision. Nonetheless, the Board has also reviewed the findings to see if the provisions of 38 C.F.R § 3.321(b) (1994) would apply in the veteran's case regarding the assignment of an extraschedular evaluation but the Board finds that the left eye cataract is not exceptional or unusual. The medical evidence does not show that the symptomatology associated with the veteran's left eye disability, in and of itself, has caused marked interference with employment or that it has been the cause of frequent periods of hospitalization as to render impractical the application of the regular schedular standards. On the other hand, even though the manifestations of the veteran's left eye cataract do not meet the criteria of either a compensable schedular or extraschedular evaluation, this disability has been continuously rated at or above 10 percent for more than twenty years for compensation purposes and is, therefore, protected. 38 U.S.C.A. § 110 (West 1991); 38 C.F.R. § 3.951 (1994). ORDER Entitlement to more than a 10 percent disability rating for a left eye cataract due to trauma is denied. BRUCE KANNEE 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.