BVA9505339 DOCKET NO. 93-09 512 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a compensable evaluation for a traumatic cataract and subluxation of the lens, with corneal scar, of the right eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran has verified active military service from January to April 1948 and from September 1950 to April 1955. CONTENTIONS OF APPELLANT ON APPEAL The veteran claims that his service-connected traumatic cataract and subluxation of the lens, with corneal scar, of the right eye has worsened and has now caused blindness in his right eye. Specifically, he maintains that the healing of his right eye after the March 1992 cataract surgery was painful and long and that, although the vision in his right eye was supposed to improve after the surgery, his vision decreased to the extent that he is no essentially blind in his right 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 warrants the grant of a 30 percent disability rating, but no higher, for a traumatic cataract and subluxation of the lens, with corneal scar, of the right eye. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. In March 1992, the veteran underwent right eye surgery involving cataract extraction and a plastic lens implant. Subsequently, the diagnosis of pseudoaphakia was made. CONCLUSION OF LAW The criteria for a 30 percent disability evaluation, but no higher, for a traumatic cataract and subluxation of the lens, with corneal scar, of the right eye are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321 and Part 4, § 4.84a, Codes 6027 and 6029 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). According to a September 1963 rating decision, the RO granted service connection for traumatic luxation of the lens of the right eye for hospital or treatment purposes. The service medical records demonstrated that in December 1952, the veteran had been accidentally struck in his right eye with a swinging branch. He sustained an abrasion to his right cornea, a laceration of his right sclera, and subluxation of the lens of his right eye. The final diagnoses, made at the time of discharge from initial hospitalization for this injury, were traumatic rupture of the zonular fibers with subluxation of the lens and Berlin's edema (commotio retinae), laceration of the cornea and conjunctiva of the right eye, and traumatic iritis. The retirement examination noted that the veteran had been recently hospitalized and that, during this hospitalization, a diagnosis of a dislocation of the lens of the right eye was made. The retirement examination showed that the veteran had a bilateral uncorrected visual acuity of 20/20. In a February 1987 rating decision, the RO redefined the veteran's service-connected right eye disability as traumatic cataract and subluxation of the lens of the right eye with a corneal scar. The RO granted a noncompensable rating for this service-connected disability, effective from May 1986, under Code 6027. The RO also denied service connection for bilateral nuclear sclerotic cataracts with impairment of vision. The noncompensable rating was based on VA ophthalmology examinations in 1986 and 1987, which included diagnoses of nuclear sclerotic cataracts (more in the right eye than the left eye), mild traumatic cataract of the right eye, mild subluxation of the lens of the right eye, and a corneal scar. Significantly, however, a VA examiner in January 1987 concluded that the veteran's nuclear sclerotic cataracts, in the right eye more than the left eye, caused his decreased vision and that the mild traumatic cataract of his right eye and the mild subluxation of the lens of his right eye were not responsible for the decrease in vision. While the veteran contends that his right eye injury caused the loss of vision, he has not submitted any support for this contention. His assertion is not sufficient to establish such a relationship. Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).m Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The Court has recently held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected right eye disability. The veteran is currently evaluated as noncompensably disabled for his service-connected right eye disability under Diagnostic Codes 6027. Pursuant to this Code, preoperative traumatic cataracts are evaluated based on the resulting visual impairment, and post-operative traumatic cataracts are rated based on the resulting impairment in vision and aphakia. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.84a, Code 6027 (1994). Under Code 6029, unilateral or bilateral aphakia is rated as 30 percent disabling. This evaluation is a minimum rating that cannot be combined with any other rating for impaired vision. 38 C.F.R. Part 4, § 4.84a, Code 6029 (1994). A review of the medical evidence in the present case indicates that the veteran is entitled to a 30 percent, but no higher, under Code 6029. The veteran has been granted service connection for a traumatic cataract and subluxation of the lens of the right eye, with a corneal scar. However, in February 1987, service connection for bilateral nuclear sclerotic cataracts with impairment of vision was denied. In March 1992, he underwent eye surgery for cataract extraction and a plastic lens implant in his right eye. The hospitalization report does not specifically state whether the service-connected or nonservice-connected cataracts, or both, were removed during this surgery. However, because the evidence is in relative equipoise with regard to the question of whether the veteran's service-connected right eye cataract and lens subluxation were etiologically related to his lens surgery, the veteran must prevail. 38 U.S.C.A. § 5107(b) (West 1991). The Board of Veterans' Appeals (Board) concludes, therefore, that the cataract surgery in March 1992 is related to the veteran's service-connected cataract. This surgery involved an implant of a plastic lens in the veteran's right eye. The lens implant is clearly related to the veteran's service-connected right eye disability, which is defined as a traumatic cataract and subluxation of the lens of the right eye, with a corneal scar. Consequently, the veteran's service-connected right eye disability must be considered post-operative and, under Diagnostic Code 6027, will be evaluated based on the extent of impairment of vision and aphakia. See 38 C.F.R. Part 4, § 4.84a, Code 6027 (1994). The most recent VA ophthalmology examination, which was conducted in September 1992, demonstrated that the veteran is legally blind in his right eye. Significantly, however, this examiner expressed his opinion that the blindness in the veteran's right eye is not related to his service-connected right eye disability. A VA ophthalmology report received at the RO in January 1987 also provides a medical opinion regarding the etiology of the veteran's right eye blindness. As the Board has previously discussed, in this examination report, the examining physician expressed his opinion that the veteran's nuclear sclerotic cataracts (the nonservice-connected cataracts), which are more prevalent in his right eye than his left eye, are the etiology of his decreased vision. Moreover, the examiner specifically stated that the mild traumatic cataract of the right eye (the service-connected cataract) and the mild subluxation of the right eye lens (which is also part of the service-connected right eye disability) are not responsible for the veteran's decreased vision. Because the visual impairment in the veteran's right eye has been associated with his nonservice-connected cataracts, his right eye disability can only be evaluated based on the aphakia resulting from the March 1992 right eye surgery. See 38 C.F.R. Part 4, § 4.84a, Code 6027 (1994). In this regard, the Board notes that the report of the March 1992 right eye surgery indicates that a plastic lens was implanted in the veteran's right eye. Subsequently, at the VA ophthalmology examination conducted in September 1992, the diagnosis of pseudoaphakia of the right eye was made. The Board concludes that the veteran is entitled to a 30 percent disability evaluation under Code 6029. See 38 C.F.R. Part 4, § 4.84a, Code 6027 (1994). Although Code 6029 states that the 30 percent rating is only a minimum rating for aphakia, the veteran in the present case is not entitled to a rating higher than 30 percent under this Code. The Code does not provide any criteria for evaluations for aphakia greater than 30 percent. In any event, the most recent medical evidence does not demonstrate that the veteran experiences any additional residuals of the plastic lens implant of his right eye. As noted above, his loss of visual acuity is due to other causes. At a September 1992 VA ophthalmology examination, the diagnoses of pseudoaphakia of the right eye, visually insignificant cataract of the left eye, presumed ocular histoplasmosis of both eyes with a macular scar of the right eye from resolving subretinal neovascular membrane, legal blindness in the right eye (secondary to the prior diagnosis), and corneal scars of the right eye which are not visually significant, were made. Significantly, no symptomatology of the plastic lens implant, was indicated on the examination report or on the outpatient treatment records dated in 1992 after the March 1992 right eye surgery. Consequently, the veteran is not entitled to a disability evaluation greater than 30 percent under Code 6029. Other provisions of 38 C.F.R. Parts 3 and 4 have been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. the veteran has not had recent frequent hospitalization for this disability. The Board finds that the present case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Therefore, an disability rating greater than 30 percent on an extraschedular basis under 38 C.F.R. § 3.321 is not in order. ORDER A 30 percent rating, but no higher, for a traumatic cataract and subluxation of the lens, with corneal scar, of the right eye is granted, subject to the law and regulations governing the award of monetary benefits. V. L. JORDAN 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.