Citation Nr: 0324067 Decision Date: 09/16/03 Archive Date: 09/23/03 DOCKET NO. 01-08 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased disability rating for post operative traumatic cataract of the right eye, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Reichelderfer, Counsel INTRODUCTION The veteran served on active duty from January 1947 to May 1948. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran is blind in the service connected right eye having light perception only. 3. The veteran is not totally blind in the non service connected left eye. 4. Neither an exceptional nor an unusual disability picture has been demonstrated that would render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an increased disability rating for post operative traumatic cataract of the right eye are not met. 38 U.S.C.A. §§ 1155, 1160(a), 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.326, 3.383(a), 4.75, 4.84a, Diagnostic Codes 6029, 6070 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends, in essence, that the disability due to his blindness in the right eye is more severe than reflected by the disability rating currently assigned. A June 1948 rating decision granted service connection for traumatic cataract of the right eye and assigned a 30 percent disability rating. The decision also granted special monthly compensation on account of loss of use of one eye having only light perception. A March 1968 rating decision granted a temporary total disability rating due to convalescence. The 30 percent disability rating was then continued and has remained in effect since that time. The severity of a disability is ascertained by application of the criteria set forth in the VA Schedule for Rating Disabilities, contained in 38 C.F.R. Part 4 (2002) (Rating Schedule). The disability ratings are based upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002). 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 (2002). When service connection has been established for unilateral vision disability, the severity of any disability or impairment in the eye that is not service-connected will be considered, for VA disability rating purposes, only when total blindness in the nonservice-connected eye is demonstrated. 38 U.S.C.A. § 1160(a) (West 2002); 38 C.F.R. § 3.383(a) (2002). During the pendency of the veteran's claim and appeal, the Veterans Benefits Act of 2002 was enacted. Pub. L. 107-330, 116 Stat. 2820 (Dec. 6, 2002). This new law amended 38 U.S.C. § 1160, however, the amendment is applicable to rating hearing loss in one ear and does not apply to the veteran's claim. The best distant vision obtainable after best correction by glasses will be the basis of rating. 38 C.F.R. § 4.75 (2002). Bilateral or unilateral aphakia (absence of the lens of the eye) warrants a 30 percent rating. The 30 percent rating prescribed for aphakia is a minimum rating to be applied to the unilateral or bilateral condition and is not to be combined with any other rating for impaired vision. 38 C.F.R. § 4.84a, Diagnostic Code 6029 (2002). Blindness in one eye having only light perception and vision of 20/40 in the other eye warrants a 30 percent disability rating. 38 C.F.R. § 4.84a, Diagnostic Code 6070 (2002). The veteran is service connected for post operative traumatic cataract of the right eye and is rated for blindness of that eye. The September 2000 VA eyes examination show that with glasses the veteran was able to count fingers with the right eye. Other VA medical records show he could distinguish hand movement. Both the VA examination and the VA medical records show that the veteran is considered blind in the right eye. Additionally, a private physician has indicated the veteran is blind in the right eye. The left eye is not service connected. The VA eyes examination shows that with glasses vision in the left eye was 20/25. An October 2000 VA records show that left eye corrected vision was 20/30+ and uncorrected vision was 20/80. Additionally, a private medical statement notes the best correction of the left eye was 20/30. Accordingly, the medical evidence shows that the veteran has vision in the left eye and is thus not totally blind. Since the veteran is not totally blind in the left eye, that eye may not be considered in determining the level of disability for the service connected right eye. Under the criteria of Diagnostic Codes 6029 and 6070 of the Schedule for a post operative cataract of the right eye with blindness and light perception only, the best vision in the listed in the Schedule for the non service connected left eye must be used for assigning the disability evaluation. This is a 30 percent disability rating which is consistent with the disability rating currently assigned. The 30 percent rating is the maximum disability rating available for blindness of one eye. 38 C.F.R. §§ 3.383(a), 4.75, 4.84a, Diagnostic Codes 6029, 6070 (2002). At the veteran's April 2002 hearing at the RO, he essentially indicated that the blindness in his right eye was more disabling than 30 percent and had impaired his employment opportunities. He indicated that since he is blind in one eye, a 50 percent rating would be appropriate. However, the Schedule is based on the average impairment caused by disability in civilian occupations. Under the Schedule for ratings of the eye, the rating criteria of Diagnostic Codes 6029 and 6070 directly address the veteran's blindness in the right eye and dictates the level of disability. As noted above, this is a 30 percent disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.84a, Diagnostic Codes 6029, 6070 (2002). The veteran is currently rated at the maximum disability rating available for the service connected blindness of one eye having only light perception. This raises the possibility of a rating on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) (2002). The governing norm for consideration of an extraschedular evaluation is 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 so as to render impractical the application of the regular schedular standards. This issue has not been raised by the veteran or his representative, and it has not been considered by the RO. There is no evidence in the claims file that the service connected blindness of the right eye has caused repeated hospitalizations. While the record indicates the veteran has received outpatient treatment, this does not constitute hospitalization. Additionally, while the veteran testified that he was unable to do certain kinds of work, he did indicate that he worked in construction for many years. There is no evidence which shows the right eye blindness causes marked interference with employment over what is compensated for by the Schedule or has otherwise rendered the application of the criteria of the Schedule impractical, and neither the veteran nor the representative has presented such evidence. Accordingly, there is no basis for consideration of an extraschedular evaluation for the veteran's blindness of the right eye. 38 C.F.R. § 3.321(b)(1) (2002); VAOPGCPREC 6-96. Based on the above, the preponderance of the evidence is against the veteran's claim for an increased disability rating for a post operative traumatic cataract of the right eye. 38 U.S.C.A. §§ 1155, 1160(a) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 3.383(a), 4.75, 4.84a, Diagnostic Codes 6029, 6070 (2002). During the pendency of the appellant's claim and appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted. The VCAA and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim. Additionally, the VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA also requires VA to notify the claimant and the claimant's representative of any information including medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2002). Review of the record reflects that the veteran was informed of the requirements for a grant of the benefit sought in the August 2001 statement of the case. The statement of the case and the supplemental statements of the case provided the veteran with a summary of the evidence in the record used for the determination. Accordingly, the veteran was advised of the evidence necessary to substantiate his claim. In a July 2001 VA letter the veteran was advised of the VCAA, the kind of evidence he was responsible for obtaining, and the evidence VA was responsible for obtaining. Additionally, a June 2003 VA letter advised the veteran of the evidence received, the kind of evidence he was responsible for obtaining, and the evidence VA was responsible for obtaining. The veteran has received a VA examination. VA medical records have been requested and obtained, and a statement from a private physician has been received. The veteran has not identified additional relevant evidence of probative value which has not already been sought and associated with the claims file. Accordingly, the facts relevant to this claim have been developed and there is no further action to be undertaken to comply with the provisions of the VCAA. 38 C.F.R. §§ 3.102, 3.159, 3.326 (2002). ORDER An increased disability rating for a post operative traumatic cataract of the right eye is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.