Citation Nr: 0002104 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-12 397A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an increased rating for a disability of the left eye, currently rated 40 percent disabling. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran had recognized service in the Commonwealth Army of the Philippines from December 1941 to April 1942, November 1944 to February 1945, and in March 1946. This case is on appeal to the Board of Veterans' Appeals (Board) from a September 1997 rating decision of the Regional Office (RO) that denied a claim for a disability rating of more than 40 percent for a disability of the left eye. The veteran perfected an appeal on that issue and the case was forwarded to the Board for appellate consideration. The Board notes that in its September 1996 decision, service connection was denied for a disability of the right eye as secondary to the service-connected left eye disorder. In a letter received by the RO in July 1997 and in the August 1998 substantive appeal regarding the claim currently before the Board, the veteran attempted to reopen his previously denied claim of entitlement to service connection for a right eye disability secondary to his service-connected left eye disability. That claim was denied on the merits, not as an attempt to reopen the September 1996 final Board decision, in a December 1998 rating decision, and the veteran was notified of that decision and of his appellate rights in that regard in January 1999. He did not submit a Notice of Disagreement regarding that claim, but was provided a Statement of the Case in June 1999 in which the basis for the denial of service connection on a secondary basis was explained. To date he has not submitted a substantive appeal regarding that claim, so it is not on appeal before the Board at this time. However, in light of the fact that the July 1997 claim should have been developed as an attempt to reopen the previously denied claim, the Board refers that matter to the RO for appropriate action. Finally, the Board points out that in August 1998 the veteran perfected an appeal as to a claim of entitlement to an increased rating for his service-connected headaches. In January 1999 he was advised that Department of Veterans Affairs (VA) had increased the disability rating assigned for those headaches from 10 percent to 30 percent. In February 1999 the RO inquired as to whether the veteran was satisfied with the new rating assigned for the headaches, and in April 1999 received the veteran's response that he was satisfied. Accordingly, a claim for an increased rating for the veteran's service-connected headaches is not currently before the Board. FINDING OF FACT The manifestations of the veteran's service-connected left eye disability are total blindness and a shrunken eyeball with a dense membrane covering the eyeball; the veteran is not blind in the right eye. CONCLUSION OF LAW A disability rating of more than 40 percent for a disability of the left eye is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.383, 4.1, 4.7, 4.84a, Diagnostic Code 6066 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Background In February 1950, service connection was granted for a traumatic corneal scar on the left eye, with a 10 percent rating effective in March 1946. The report of a January 1948 VA examination revealed a dense white scar with anterior synechia and a slightly irregular pupil in the left eye, with visual acuity of 20/60. A July 1953 VA examination revealed a minimal bilateral hearing loss and a dense opacity in the cornea of the left eye with visual acuity of 20/100 that was not correctable. An October 1990 report from the veteran's treating physician shows that the visual acuity in his left eye was negative for light perception with phthisis bulbi. A February 1993 report from his treating physician shows that the left eye was shrunken and non-seeing. Based on the foregoing, the Board assigned a 40 percent rating under Diagnostic Code 6066 in its September 1996 decision. The RO implemented the Board's decision to increase the rating for the left eye disorder from 30 percent to 40 percent effective from January 11, 1991, in a rating decision dated in October 1996. In July 1997 the RO received the veteran's claim of entitlement to an increased rating for his left eye disorder. The veteran contends that he is totally blind in both eyes, and that as a result he is entitled to a 100 percent rating for his service-connected left eye disability. He also argues that if blindness in both eyes warrants a 100 percent disability rating under VA's Schedule for Rating Disabilities, blindness in one eye, in this case the left eye, warrants a 50 percent rating. He asserted an increased rating was warranted because his right eye was totally blind. In support of his claim for an increased rating for his left eye, the veteran submitted an August 1997 statement from a physician, Dr. V. Dr. V reported that the veteran has total blindness in the left eye with no light perception, and total blindness in the right eye, with light perception. She also reported the veteran suffered from pain in the left eye due to active chronic uveitis and adherent leukoma. In a September 1997 rating decision the RO denied, inter alia, the veteran's claim for an increased rating for the left eye disability. In February 1998 the RO received the veteran's Notice of Disagreement, and in May 1998 furnished him with a Statement of the Case explaining the reasons for that decision. Later in May 1998 he underwent a VA compensation and pension examination. The examiner noted the veteran's reports of bilateral blurring vision, and a reported cataract extraction on the right eye in 1985. The right eye was externally normal, and the pupil was reactive to light with sector iridectomy, lens aphakic fundus except for sclerotic changes, the rest of the fundus was normal, with no paralysis of extraocular muscles. Upon examination the examiner noted the veteran claimed to have only light perception in the right eye. The left eye was noted to have an opaque cornea, with no other structures visualized. Upon examination, no light perception was noted. Diplopia was not tested. The diagnosis was post cataract extraction of the right eye; hyperopia, compound astigmatism, bilaterally; arteriosclerotic fundus of the right eye; leukoma secondary to uveitis of the left eye; and exaggeration of visual impairment of the right eye. The examiner further explained that he had reviewed the claims folder. He reported that although the veteran claimed to see only light in the right eye, he was able to see the footstep of the examination chair, a distance of 4 feet: the examiner added that a person with only light perception had no way of seeing that distance. The examiner also noted the veteran signed his name in a letter dated in February 1998, but when asked to sign his name the day of the examination, he just scribbled. The veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, in August 1998 in which he argued that his eye disability prevented him from attending a VA compensation and pension examination, but that he was able to provide a private medical opinion that he asserts showed his right eye disability is secondary to his left eye disability and that he is totally blind in both eyes. He argues that under Diagnostic Code 6000 his left eye disability should be rated more than 40 percent disabled. In a December 1998 rating decision, the veteran's claim for a disability rating of more than 40 percent was denied, although his claims for increased ratings for headaches and chronic brain syndrome were granted, as was his claim of entitlement to a total disability rating based on individual unemployability. Applicable Laws and Regulations Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings for each diagnostic code, as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. Id. The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Chronic uveitis is rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest- requirements, or episodic incapacity, combining an additional rating of 10 percent during continuance of active pathology. 38 C.F.R. 4.84a, Diagnostic Code 6000. Compensation is payable for service-connected blindness in one eye and nonservice-connected blindness in the other eye as if both disabilities were service-connected, provided the nonservice-connected disability is not the result of the veteran's own willful misconduct. 38 C.F.R. § 3.383 (a). Blindness in one eye, having only light perception, with the other eye having vision of 20/40, warrants a 30 percent rating under 38 C.F.R. § 4.84a, Diagnostic Code 6070. When the veteran exhibits decreased levels of visual acuity in the other eye, the criteria provide correspondingly higher disability ratings for the service-connected eye. The anatomical loss of one eye, with visual acuity of 20/40 in the other eye, is rated 40 percent disabling under 38 C.F.R. § 4.84a, Diagnostic Code 6066. As under Diagnostic Code 6070, when the veteran exhibits decreased levels of visual acuity in the other eye, the criteria provide correspondingly higher disability ratings for the service- connected eye. Analysis The Board finds that the veteran's claim for a rating of more than 40 percent for his service-connected left eye disability is well grounded within the meaning of the statutes and judicial construction, as he as alleged that he suffers increased disability. 38 U.S.C.A. § 5107(a); see also Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In her August 1997 private medical record, Dr. V reported the veteran had active chronic uveitis. However, in the May 1998 VA examination report, no chronic uveitis was noted. The Board affords the opinion of the VA examiner, which unlike Dr. V's report was based upon a review of the veteran's claims folder, more probative value. Based on the foregoing, the Board concludes that the evidence supports a finding that the veteran does not have active chronic uveitis, and so consideration of the possibility of a higher rating under Diagnostic Code 6000, as urged by the appellant, would not result in a higher disability rating in this case. A claim for increase must be considered under all regulations under which a higher rating is potentially assignable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The record reflects that the veteran is blind in only one eye, the left eye. That disability is service connected. If he was also blind in his nonservice-connected right eye, 38 C.F.R. § 3.383(a)(1) would require that the VA consider the nonservice-connected right eye blindness as if it were service-connected; under Diagnostic Codes 6061 or 6062, a one hundred percent rating would be warranted. However, the record in this case does not support a finding that the veteran is blind in his right eye. Section 1155 of Title 38, United States Code, authorizes a schedule of ratings to reflect reductions in earning capacity. Although Section 1155 is silent as to whether these reductions must be predicated upon service-connected disabilities, it is positioned in chapter 11, which deals with disability compensation for service-connected disabilities. Although a vision loss in the nonservice- connected eye may very well contribute to a loss of the veteran's earning capacity, compensation for the nonservice- connected right eye impairment is precluded because the right eye disability is not service connected and because the vision loss in that eye is less than total. See Boyer v. West, 12 Vet. App. 142 (1999). As noted by the Board in its 1996 decision, the anatomical deformity of the veteran's shrunken left eyeball, together with the total loss of vision in that eye, are more properly classified as the anatomical loss of the eye under Diagnostic Codes 6063 through 6066 than as blindness in one eye with only light perception under Diagnostic Codes 6067 through 6070, or any other of the Diagnostic Codes. The Board also notes that the record contains no recent measurement of visual acuity, as the veteran reported during the May 1998 VA examination that he was blind in the right eye with only light perception, and Dr. V reported in August 1997 that the veteran had only light perception in the right eye. The Board also notes that the VA examiner in May 1998 rejected the veteran's assertion and the report of Dr. V that the veteran had only light perception in the right eye. VA has a duty to assist the veteran in the development of this well-grounded claim. 38 U.S.C.A. § 5107. That duty may include a new examination when it appears the most recent medical evidence of record does not accurately reflect the current level of disability. Green v. Derwinski, 1 Vet. App. 121 (1991). The veteran's contention that a 50 percent rating is warranted for left eye blindness because the schedule provides a 100 percent rating for blindness in both eyes has no legal basis. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.383(a); 4.84a. ORDER A disability rating in excess of 40 percent for the veteran's service-connected left eye disability is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals