Citation Nr: 0002152 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-43 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of a blow-out fracture of the right eye with exophthalmos. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from June 1974 to June 1977 and from June 1978 to February 1985. The current appeal arose from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The RO denied entitlement to service connection for a psychiatric disorder, and an increased evaluation for residuals of a blow-out fracture of the right eye with enophthalmos. In October 1997 the Board of Veterans' Appeals (Board) denied entitlement to service connection for an acquired psychiatric disorder, and remanded the issue of entitlement to an evaluation in excess of 10 percent for residuals of a blow- out fracture of the right eye with enophthalmos to the RO for further development. In August 1999 the RO affirmed the prior denial of entitlement to an increased evaluation for residuals of a blow-out fracture of the right eye with enophthalmos. The case has been returned to the Board for further appellate review. FINDING OF FACT The May 1999 VA special eye examination disclosed that corrected visual acuity bilaterally was 20/30+ a few letters, with no evidence of active pathology related to the right eye blow-out fracture. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a blow-out fracture of the right eye with enophthalmos have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.84, Diagnostic Code 6009 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The claims file contains a police report which shows that on January 27, 1985, the veteran was assaulted by unknown suspects during which time he suffered a possible broken right cheek bone and eye damage. The report shows he was robbed of cash, his wallet, and car keys. On his report of accidental injury the veteran recorded that he was assaulted by the same gang which had previously harassed another person on whose behalf he interceded. VA conducted a special eye examination of the veteran in May 1985. He reported that on active duty the previous January while home on leave he was assaulted and struck in the right eye. As a result he sustained a blow-out fracture of the right eye. He was hospitalized for three days but did not have any surgical repair of the injury. Sometimes he saw double and complained of lost vision in the right eye. Examination disclosed a right visual acuity of 20/40 with best correction, and this could not be improved. Examination of extraocular muscle movements of the right eye revealed restriction of elevation and restriction looking straight up, looking up and to the right, and restriction on right lateral gaze. In addition the veteran had double vision when he looked up, straight up, up and to the right, on right lateral gaze, and right and downward. He had enophthalmos of the right eye which was disfiguring. The diagnosis was blow-out fracture of the right eye. In May 1986 the RO granted entitlement to service connection for residuals of a blow-out fracture of the right eye with enophthalmos, with assignment of a 20 percent evaluation. A February 1987 VA special eye examination report shows the veteran had a visual acuity of 20/50 with pinhole vision. Examination of extraocular movements disclosed the right eye could not elevate past the midline. The veteran could look down and look straight ahead, but could not elevate on the right, left or straight up. In any field of vision above the midline he had double vision. He had enophthalmos which was noted to be disfiguring. The examination diagnoses were blow-out fracture of the right eye with enophthalmos and disfigurement. A November 1987 VA ophthalmology clinical record shows the veteran's uncorrected vision was 20/200 and 20/100. An October 1988 VA examination of the right eye disclosed that the best visual acuity of the right eye was 20/40- at distance. The impression was no ophthalmological pathology detected in either the anterior or the posterior segments. No muscle paresis or restriction was noted and the veteran appeared to exhibit normal visual functioning. The veteran's slightly reduced visual acuity could not be explained. A VA hospitalization report referable to admission during that latter part of 1988 shows the veteran was noted to be legally blind in the right eye due to a blow-out fracture. In January 1989 the RO reduced the evaluation for residuals of a blow-out fracture of the right eye with enophthalmos from 20 percent to 10 percent disabling. A February 1991 VA domiciliary treatment record shows the veteran's right eye was obviously depressed from an old blow- out fracture, but he had good vision in the right eye. There were no field of vision deficits on visual confrontation. A July 1993 VA outpatient treatment record shows the veteran complained that his right eye was painful. He reported that he was legally blind in the right eye. Examination revealed 20/30 corrected vision in the right eye. The veteran provided testimony before a hearing officer at the RO in December 1993. He testified that he was going blind in the right eye. He stated that he had to wear glasses to do anything and could not drive at night. He also reported that VA had given him a special computer for his vocational rehabilitation schooling because he could not see to type. He stated that his vision had markedly changed since his last VA examination. VA conducted a special eye examination of the veteran in May 1999. On examination visual acuity without correction was 20/400 bilaterally. With correction by use of manifest refraction the examiner was able to obtain 20/30 + a few letters bilaterally. Slit lamp examination revealed a marked enophthalmos of the right eye. The lids and conjunctiva were clear. Lachrymal examination was within normal limits. The cornea and sclera were clear. Anterior chambers were clear and deep. Pupils were equal, round, and reaction to light and accommodation. The iris was clear in each eye. The lenses were clear. Tension by applanation was 15 in the right eye and 14 in the left eye. Fundus examination showed the disk was round, pink, with cup/disk ratio of 0.4, and arterial-venous ratio was 2.3. The macula was clear. Pictures taken to show the degree of enophthalmos caused by the blow-out fracture to the floor of the right orbit were associated with the examination. The examination diagnoses were history of blow- out fracture of the right orbit, and marked enophthalmia of the right orbital area secondary to blow-out fracture. Criteria 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 (1994); 38 C.F.R. § 4.2 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. The percentage ratings contained in the rating schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An unhealed injury of an eye, in chronic form is to be 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. A minimum rating of 10 percent may be assigned during active pathology. 38 C.F.R. § 4.84a; Diagnostic Code 6009. A noncompensable evaluation may be assigned for corrected bilateral visual acuity of 20/40. 38 C.F.R. § 4.84a; Diagnostic Code 6079. A 10 percent evaluation may be assigned for corrected visual acuity in one eye of 20/50, and corrected visual acuity of 20/40 in the other eye. 38 C.F.R. § 4.84a; Diagnostic Code 6079. A 10 percent evaluation may be assigned for corrected visual acuity of 20/50 bilaterally. 38 C.F.R. § 4.84a; Diagnostic Code 6078. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim of entitlement to an increased evaluation for his right eye disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his service-connected right eye disability (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is also satisfied that as a result of the October 1997 remand of the case to the RO for further development, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The RO has assigned a 10 percent evaluation under Diagnostic Code 6009 for the veteran's residuals of a blow-out fracture of the right eye with enophthalmos. The 10 percent evaluation contemplates chronicity of the right eye injury and such chronicity is demonstrated by the enophthalmos reported on examination since service to the present. The post service evidentiary record shows the veteran complained of pain in the right eye on one occasion in 1993 when seen by VA on an outpatient basis. Later dated eye evaluations are negative for any complaints of pain, and no active pathology was otherwise found on the most recent VA special eye examination conducted in May 1999. There is no evidentiary basis upon which to predicate assignment of an additional rating of 10 percent as continuance of active pathology related to the blow-out fracture is not shown by the evidence of record. The veteran has for the most part contended that the primary if not exclusive clinical manifestation of his right eye disability is diminution of vision warranting a higher evaluation. The Board's review of the evidentiary record does not permit assignment of an increased evaluation on the basis of decreased visual acuity as the most recent VA examination disclosed corrected visual acuity bilaterally of 20/30 + a few letters. In this regard, the Board notes that uncorrected as well as corrected visual acuity is the same for both eyes irrespective of the blow-out fracture of the right eye. No compensable decreased visual acuity due to the service- connected blow-out fracture is shown by the evidentiary record. Accordingly, entitlement to an increased evaluation on this, or any other basis is not supported by the evidentiary record. In this regard, no question has been presented as to which of two evaluations would more properly classify the severity of the service-connected residuals of a blow-out fracture of the right eye with enophthalmos. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the case at hand, the Board notes that the RO provided the veteran with the criteria for the assignment of an extraschedular evaluation, and discussed the criteria in light of his claim. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard the Board notes that the appellant's service- connected right eye disability has not been shown by the evidentiary record to have markedly interfered with employment or to have required frequent inpatient care. It must be kept in mind that the veteran's bilateral corrected visual acuity does not warrant assignment of even a compensable rating, and there is no active pathology related to the previous injury. The current schedular criteria adequately compensate the veteran for the demonstrated nature and extent of severity of his residuals of a blow-out fracture of the right eye with enophthalmos. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as heres, the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent for residuals of a blow- out fracture of the right eye with enophthalmos. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an evaluation in excess of 10 percent for residuals of a blow-out fracture of the right eye with enophthalmos is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals