BVA9505687 DOCKET NO. 93-13 545 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased (compensable) evaluation for notching of the left upper eyelid, with ptosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran was in the Merchant Marine during World War II, and a period of active duty has been certified, from December 1, 1943 to March 10, 1944 for the purposes of Department of Veterans Affairs (VA) benefits. This appeal arises from the VA St. Petersburg, Florida Regional Office (RO) rating action of October 1990 that, in part, granted service-connection for notching of the left upper eyelid secondary to trauma and assigned a zero percent rating. In October 1991 the veteran withdrew the issue of entitlement to service connection for residuals of lacerations of the right eyelid, nose and eyebrow, raised in the April 1991 substantive appeal, but continued the appeal for service connection for defective vision. In a September 1992 rating action the service- connected disability of the left upper eyelid was enlarged to include slight ptosis, and the noncompensable rating was continued. Also in the September 1992 rating action, service connection for diplopia, left eye was established, and a 10 percent rating was assigned. This satisfied the defective vision issue, and was a complete grant of the benefit requested. The only issue before the Board is the one shown on the preceding page. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the left upper eyelid defect with ptosis warrants a compensable evaluation. 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 shows that the left upper eyelid disability more nearly approximates the criteria for a 10 percent evaluation. FINDINGS OF FACT 1. The service-connected left upper eyelid disability is principally manifested by scarring of the eyelid, notching, and ptosis, with the upper lid margin over the pupil area axis, productive of disfigurement approximating, but not exceeding, moderate. 2. The disability at issue does not present an unusual disability picture. CONCLUSION OF LAW A 10 percent evaluation for notching of the left upper eyelid with ptosis is warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.14, 4.84(a), 4.118, Diagnostic Codes 6019, 7800 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Ptosis, unilateral or bilateral, with the pupil wholly obscured, is rated as equivalent to 5/200 (1.5/60). When vision in the service-connected eye is 5/200 and vision in the other eye is 20/40 (6/12), a 30 percent rating is assigned. With the pupil one-half or more obscured, the ptosis is rated as equivalent to 20/100 (6/30). When vision in the service-connected eye is 20/100 and the other eye is 20/40 (6/12), a 10 percent rating is assigned. With less interference with vision, the disability is rated as disfigurement. 38 C.F.R. § 4.84(a), Diagnostic Codes 6019, 6074, 6079 (1994). In situations where service connection has been granted only for defective vision involving one eye, and the veteran does not have total blindness in both eyes, the visual acuity of the nonservice-connected eye is considered to be normal. 38 U.S.C.A. § 1160(a) (West 1991). Disfiguring scars of the head, face or neck, severe, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles, warrant a 30 percent evaluation. Scars resulting in moderate disfigurement warrant a 10 percent rating, and slight disfigurement warrants a zero percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1994). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 3.14 (1994). History The veteran sustained a laceration to the left upper eyelid in March 1944. There was surgical repair of the injury and the veteran was released from the medical facility later in March. When examined by the VA in August 1990, the veteran complained of some tearing and blurred vision in the left eye. Vision, in each eye, was 20/40, correctable with lenses to 20/20. External examination revealed a notching of the left upper eyelid in the central area and some scarring of the left upper eyelid. Funduscopic examination was normal. Visual fields were full to finger counting. The examination impressions were refractive error, correctable to 20/20, and notching of the left upper eyelid from trauma. The examiner noted that the lid opened well and there were no other obvious problems with the left eye. In hearing testimony in July 1991, the veteran recounted the problems he was having with the left eye, including watering and burning of the left eye, and double vision when looking left , Transcript (Tr.) at 3. He also reported using drops, for dry eyes. Tr. at 6. Submitted in support of his claim in July 1991, was a January 1991 letter addressing hospital surgical charges for repair of the left eyelid defect. Private eye examination was performed in October 1991. The diagnosis were cosmetically significant ptosis, left eye; left lateral gaze diplopia (asymptomatic); and mild dry eyes. In November the veteran underwent private evaluation for ptosis in regard to surgical repair. He also complained of diplopia (horizontal) on left lateral gaze. One of the drawings on the evaluation seemed to indicate that the left upper lid was at the upper margin of the pupil. A VA ophthalmology examination in March 1992 included visuals fields by a Goldman machine. There was some reduction in the field of the left nasal area. External examination revealed a scarring of the left upper lid with slight ptosis of that eye. The lid margin was reported to be over the pupil area axis. The pertinent diagnosis was scarring of the left upper eyelid with slight ptosis. An examination in May 1992 showed scarring of the left upper eyelid, but the veteran was able to open and close the lid. There was follow-up on the visual fields in August 1992. Analysis The disability of the left upper eyelid can be rated either on the basis of the degree of ptosis, or disfigurement of the eyelid. There are 3 examinations of record that are revealing in regard to rating the left upper eyelid on the basis of the ptosis. The private examination in October 1991 noted that the ptosis of the left eye was "cosmetically significant," and the November 1991 private examination diagrammed the extent of the ptosis. The March 1992 VA examination indicted that the lid margin was over the pupil area axis, essentially corresponding with the November 1991 diagram. On the basis of the descriptions of the left eyelid ptosis, the eyelid margin appears to be at the upper margin of the pupil, and the pupil would therefore be less that one-half obscured. Without significant interference of vision, under Diagnostic Code 6019 the ptosis would be rated on the basis of disfigurement. In regard to the left eyelid disfigurement, the descriptions of the disability do not suggest that it is severe or productive of unsightly deformity as would be needed for a 30 percent rating. However, the August 1990 examination indicated that there is some scarring, as well as notching of the left upper eye lid. The Board notes that the ptosis, in October 1991, was described as cosmetically significant, and therefore finds that the scarring and notching, in combination with the ptosis, are productive of more than slight disfigurement and that they more nearly approximate moderate disfigurement. Accordingly, a 10 percent rating is warranted on the basis of moderate disfigurement associated with the scarring, notching, and ptosis of the left upper eyelid. 38 C.F.R. §§ 4.7, 4.84, 4.118, Diagnostic Codes 6019, 7800. There is no evidence of an unusual disability picture that would warrant a rating higher than 10 percent on an extra-schedular basis. 38 C.F.R. § 3.321. ORDER A 10 percent evaluation for notching of the left upper eyelid with ptosis is granted, subject to regulations that control monetary payments. JANE E. SHARP 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. (Continued on next page) 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.