Citation Nr: 0612774	
Decision Date: 05/03/06    Archive Date: 05/15/06

DOCKET NO.  04-13 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUE

Entitlement to an initial compensable rating for defective 
vision of the left eye secondary to left eyebrow scar.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

S.Shah, Associate Counsel


INTRODUCTION

The veteran served on active duty from May 1963 to May 1967.

This matter comes to the Board of Veterans' Appeals (Board) 
from a January 2003 decision of the Department of Veterans 
Affairs (VA) Regional Office (RO).  In that rating decision 
the RO implemented an October 2002 Board decision which 
granted the veteran's claim for service connection for 
defective vision in the left eye.  The RO assigned a 
noncompensable rating for the condition, effective August 1, 
1994.  The veteran perfected an appeal of the evaluation 
assigned.


FINDINGS OF FACT

1.  All reasonable development and notification necessary for 
an equitable disposition of the instant case has been 
completed.

2.  As of October 6, 2003, the veteran's service-connected 
defective vision of the left eye is manifested by corrected 
visual acuity of 20/60, along with findings of ptosis; prior 
to October 6, 2003, the worst corrected visual acuity in the 
left eye was 20/40. 

CONCLUSION OF LAW

The criteria for a 10 percent evaluation, and no more, for 
left eye defective vision have been met from October 6, 2003.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 
4.3, 4.7, 4.10, 4.83a, 4.84a, Diagnostic Code 6078-6079 
(2005). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Development of the Claim

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. 
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 
(West 2002) redefined VA's duty to assist the veteran in the 
development of a claim.  VA regulations for the 
implementation of the VCAA were codified as amended at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005).

The notice requirements of the VCAA require VA to notify the 
veteran of any evidence that is necessary to substantiate his 
claim, as well as the evidence VA will attempt to obtain and 
which evidence he is responsible for providing.  Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).  The requirements apply 
to all five elements of a service connection claim: veteran 
status, existence of a disability, a connection between the 
veteran's service and the disability, degree of disability, 
and effective date of the disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  Such notice must be 
provided to a claimant before the initial unfavorable 
decision on a claim for VA benefits by the agency of original 
jurisdiction (in this case, the RO).  Id; see also Pelegrini 
v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA 
notice requirements may be satisfied if any errors in the 
timing or content of such notice are not prejudicial to the 
claimant.  See Pelegrini, 18 Vet. App. at 121.

As noted above, the Board granted service connection for 
visual acuity of the veteran's left eye in an October 2002 
decision.  In this case, in a February 2003 letter, the RO 
provided notice to the veteran regarding what information and 
evidence is needed to substantiate the claim for an increased 
rating, as well as what information and evidence must be 
submitted by the veteran, what information and evidence will 
be obtained by VA, and the need for the veteran to advise VA 
of or submit any further evidence that pertains to the claim.  

In addition, the veteran was provided with a copy of the 
appealed rating decision, as well as a February 2004 
Statement of the Case (SOC).  These documents provided him 
with notice of the law and governing regulations, as well as 
the reasons for the determinations made regarding his claim.  
By way of these documents, he also was specifically informed 
of the cumulative evidence already having been previously 
provided to VA or obtained by VA on the veteran's behalf.  
Therefore, the Board finds that the veteran was notified and 
aware of the evidence needed to substantiate this claim, the 
avenues through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  

The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
veteran.  Specifically, the information and evidence that 
have been associated with the claims file includes the 
veteran's service medical records, VA outpatient treatment 
reports and examination reports, private treatment records, 
and records from the Social Security Administration.  

As discussed above, the VCAA provisions have been considered 
and complied with.  There is no indication that there is 
additional evidence to obtain, there is no additional notice 
that should be provided, and there has been a complete review 
of all the evidence without prejudice to the appellant.  As 
such, there is no indication that there is any prejudice to 
the appellant by the order of the events in this case.  See 
Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993).  
Moreover, as the Board concludes below that the preponderance 
of the evidence is against the appellant's claim for an 
increased rating, any question as to an appropriate effective 
date to be assigned is rendered moot.  Any error in the 
sequence of events or content of the notice is not shown to 
have any effect on the case or to cause injury to the 
claimant.  Thus, any such error is harmless and does not 
prohibit consideration of this matter on the merits.  See 
Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 
534, 549 (Fed. Cir. 1998).


Analysis

The Board has reviewed all the evidence in the veteran's 
claims file, which consists of his multiple contentions; 
service medical and personnel records; VA medical records; VA 
examination reports; private medical records; and information 
from the SSA.  Although the Board has an obligation to 
provide adequate reasons and bases supporting this decision, 
there is no requirement that the evidence submitted by the 
veteran or obtained on his behalf be discussed in detail.  
Rather, the Board's analysis below will focus specifically on 
what evidence is needed to substantiate each claim and what 
the evidence in the claims file shows, or fails to show, with 
respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. 
App. 122, 128-30 (2000).

Disabilities must be reviewed in relation to their history.  
38 C.F.R. § 4.1 (2005).  Other applicable, general policy 
considerations are: interpreting reports of examination in 
light of the whole recorded history, reconciling the various 
reports into a consistent picture so that the current rating  
may accurately reflect the elements of disability, 38 C.F.R. 
§ 4.2; resolving any reasonable doubt regarding the degree of 
disability in favor of the claimant, 38 C.F.R. § 4.3; where  
there is a question as to which of two evaluations apply, 
assigning a higher of the two where the disability picture 
more nearly approximates the criteria for the next higher  
rating, 38 C.F.R. § 4.7; and, evaluating functional 
impairment on the basis of lack of usefulness, and the 
effects of the disabilities upon the person's ordinary  
activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1  
Vet. App. 589 (1991).

The veteran has appealed the disability rating initially 
assigned with the grant of service connection in the January 
2003 rating decision.  Because he has appealed the initial 
rating, the Board must consider the applicability of staged 
ratings covering the time period in which his claim and 
appeal have been pending.  Fenderson v. West, 12 Vet. App. 
119, 126-27 (1999).

For VA purposes, the severity of impaired central visual 
acuity is determined by comparing visual test results on the 
Snellen index with the criteria set forth in 38 C.F.R. § 
4.84a, Diagnostic Code 6061 to 6079 (2005).  The best distant 
vision attainable after the best correction by glasses will 
be the basis of the rating, except in cases of keratoconus in 
which contact lenses are medically required.  38 C.F.R. 
§ 4.75 (2005).

The veteran is currently rated for left eye defective vision 
under the provisions of 38 C.F.R. § 4.84a, Diagnostic Code 
6079.  

The evidence of record includes a February 1993 examination 
revealing uncorrected visual acuity of 20/20 in the left eye.  
The next examination discussing the veteran's left eye 
contained in the record is the November 1998 scar 
examination.  In that examination, his vision was reported as 
20/34 distance and 20/200 near in the left eye.  Corrected 
visual acuity was not provided, as this examination was 
performed for the purposes of evaluating the veteran's scars, 
not his vision.  A February 2003 private report noted 
corrected visual acuity of 20/40 in the left eye.  The 
October 2003 VA examination noted the best corrected distant 
visual acuity as 20/60.  The evidence consistently shows 
vision in the nonservice connected right eye to be 20/20.

When the vision in the service-connected eye is 20/60 or 
better, and the other eye is not service connected, a 10 
percent rating is warranted.  38 C.F.R. § 4.84a, Diagnostic 
Code 6078-6079.  As the first indication of corrected distant 
visual acuity of 20/50 or worse was on the October 6, 2003 
examination, the 10 percent rating is not warranted prior to 
that date.  

The Board notes the finding of near visual acuity of 20/200 
on the November 1998 scar examination, with distant vision of 
20/34.  However, because the examination did not report 
whether such was corrected visual acuity, was provided in 
conjunction with an examination for other purposes rather 
than a specialty vision examination, and is inconsistent with 
other evidence in the record, the Board finds the examination 
entitled to little probative weight, and not representative 
of his actual corrected visual acuity.  See 38 C.F.R. § 4.84.

The Board notes that the veteran's medical records reveal 
that he reported complaints of his left eyelid "drooping" 
when his eye is open and affecting his vision.  A November 
1998 VA examination noted that the veteran had a lid lag 
deformity over the left eye.  A February 2003 private 
examination indicated that his pupils, motility, and 
confrontational visual field were within normal limits.  The 
examiner noted that the veteran should be recommended to a 
plastic surgeon to see if there was anyway to rehabilitate 
his left upper eyelid.  An October 2003 VA examination 
indicated that a visual field examination revealed that the 
veteran could not count the superior temporal quadrant 
without holding his lid open.  The diagnosis was ptosis.

Under Diagnostic Code 6019, ptosis is rated as vision of 
5/200 when the pupil is wholly obscured, or as 20/100 where 
the pupil is one half or more obscured.  For less 
interference with vision, ptosis is rated as disfigurement.  

In this case, the visual field examination showed that only 
the veteran's superior temporal quadrant was impaired.  Such 
a finding does not indicate that the pupil is half or more 
obscured.  Rather, his ptosis affects only about a quarter of 
his visual field, and does not obscure it, just lessens it.  
Under Diagnostic Code 6019 his impairment would have to be 
rated as disfigurement.  However, the veteran is already 
receiving a separate 10 percent rating for facial 
disfigurement.  Therefore, he cannot receive still additional 
compensation for this very same symptom because this would 
violate VA's anti-pyramiding regulation.  See 38 C.F.R. § 
4.14 (the evaluation of the same manifestation under 
different diagnoses is to be avoided).  

For the reasons noted above, the veteran is entitled to a 10 
percent rating for defective vision effective October 6, 
2003.  The preponderance of the evidence fails to establish 
that a compensable rating is warranted for any period of time 
prior to that date.  See Fenderson, supra.  Moreover, as 
corrected visual acuity of 20/200 or worse is not shown, nor 
ptosis obscuring one half of the pupil, a current rating in 
excess of 10 percent is not warranted.
 
The Board also finds that there is no showing that the 
veteran's left eye defective vision has reflected so 
exceptional or so unusual a disability picture as to warrant 
the assignment of any higher evaluation on an extra-schedular 
basis.  In this regard, the Board notes that the disability 
has not objectively been shown to markedly interfere with 
employment (i.e., beyond that contemplated in the assigned 
rating), to warrant frequent periods of hospitalization, or 
to otherwise render impractical the application of the 
regular schedular standards.  Hence, the criteria for 
invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) 
are not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 
(1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash 
v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Effective October 6, 2003, entitlement to a 10 percent 
rating, but no higher, for defective vision of the left eye 
secondary to left eyebrow scar, is granted.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs