Citation Nr: 9826764 Decision Date: 09/04/98 Archive Date: 09/14/98 DOCKET NO. 95-08 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased evaluation for a left eye detached retina, with aphakia, currently evaluated as 30 percent disabling. 2. Entitlement to special monthly compensation for the loss of use of an eye. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from June 1952 to March 1954. This appeal arose from a December 1994 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to an increased evaluation for the left detached retina. In August 1995, the RO issued a rating action which denied special monthly compensation for loss of use of the eye. In September 1995, the veteran testified at a personal hearing; in October 1995, the hearing officer issued a decision which continued the denials of the requested benefits. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Veterans Appeals (Court) has recently 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; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out 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 and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA’s Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service-connected left eye detached retina with aphakia is more disabling than the current disability evaluation would suggest. He stated that he has very little vision left in the eye and that it cannot be corrected without resulting in disabling double vision. Therefore, he believes that, based on the fact that he can only count fingers at three feet with the left eye, an increased evaluation and special monthly compensation should be granted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 is against the veteran’s claims for an increased evaluation for the service-connected left eye detached retina with aphakia and for entitlement to special monthly compensation. FINDINGS OF FACT 1. The veteran’s uncorrected visual acuity in the service- connected left eye is manifested by an ability to count fingers at three feet. 2. The veteran has not been shown to be unable to recognize test letters at one foot nor has he been shown to be unable to count fingers at three feet. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation for the service- connected left eye detached retina with aphakia have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Codes 6029, 6066 (1997). 2. The criteria for special monthly compensation for loss of use of the left eye have not been met. 38 U.S.C.A. §§ 1114(k), 5107(a) (West 1991); 38 C.F.R. § 3.350(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, 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 (West 1991); 38 C.F.R. Part 4 (1997). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1997). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). I. Entitlement to an increased evaluation for the service-connected left detached retina with aphakia According to the applicable regulations, unilateral or bilateral aphakia warrants a 30 percent evaluation. The 30 percent evaluation is a minimum evaluation which is not to be combined with any other rating for impaired vision. When only one eye is aphakic, the eye having the poorer corrected visual acuity will be rated on the basis of its acuity without correction. When both eyes are aphakic, both will be rated on corrected vision. The corrected vision of one or both aphakic eyes will be taken one step worse than the ascertained value, but not better than 20/70 (6/21). The combined rating for the same eye should not exceed the evaluation for the total loss of vision of that eye, unless there is an enucleation or a serious cosmetic defect added to the total loss of vision. 38 C.F.R. Part 4, Code 6029 (1997). Anatomical loss of one eye warrants a 40 percent evaluation, in addition to special monthly compensation, when corrected visual acuity in the other eye is 20/40 (6/12). 38 C.F.R. Part 4, Code 6066 (1997). In the instant case, the veteran had suffered an injury to the left eye prior to entry onto active duty, although his sight in that eye was normal at the time of induction. In September 1952, he began to notice a black spot in the left eye and further investigation revealed an almost complete detachment of the retina. He underwent surgical repair in December 1953 and his visual acuity at discharge was 20/50. The most recent evidence included an examination performed by VA in January 1995. It was noted that he had experienced a spontaneous complete dislocation of the lens of the left eye into the vitreous cavity in July 1992. Since that time his left eye has been aphakic. He had also developed chronic low grade uveitis in the left eye due to the retention of the cataract in the back of the eye. It was noted that it was not possible to correct the vision of the left eye since there would be a huge magnification difference between his two eyes that would cause diplopia. His best corrected visual acuity was 20/25 in the right eye; he was able to count fingers at 6 to 12 inches with the left eye. The veteran testified at a personal hearing in September 1995. He stated that he had a cataract in the left eye, but that the lens was dislocated and floated around. He also noted that any attempt to correct the vision in his left eye caused severe double vision that was as bad as being blind. The veteran was examined by VA in February 1997. The examining physician was the veteran’s treating physician, who stated that during the time that he had been treated he had suffered a spontaneous dislocation of the lens of the left eye which caused his cataract to drop into the posterior segment of the left eye, leaving him aphakic in that eye. The examination noted that the right eye corrected to 20/25 with a +1.25 lens and the left corrected to 20/40 with a +9.00 lens. However, the tremendous size difference between the two lenses resulted in disabling double vision. As a result, he was treated as a monocular patient, who relied on his right eye to get around. Uncorrected visual acuity was 20/50 in the right eye; he was able to count fingers at three feet without correction of the left eye. After carefully reviewing the evidence of record, it is found that that evidence does not support entitlement to an increased evaluation for the service-connected left eye detached retina with aphakia. It is noted that he is currently receiving the maximum amount of compensation warranted for unilateral aphakia under 38 C.F.R. Part 4, Code 6029 (1997). In order to receive a 40 percent disability evaluation, he would have to demonstrate anatomical loss of the service-connected eye, a fact that has not been established in this case. Therefore, it is found that an increased evaluation is not justified at this time. In conclusion, it is found that the preponderance of the evidence is against the veteran’s claim for an increased evaluation for the service-connected left eye detached retina with aphakia. II. Entitlement to special monthly compensation for loss of use of the left eye According to the applicable criteria, special monthly compensation is payable for blindness of one eye having only light perception. 38 U.S.C.A. § 1114(k) (West 1991); 38 C.F.R. § 3.350(a) (1997). Loss of use or blindness of one eye, having only light perception, will be held to exist when there is an inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. 38 C.F.R. § 3.350(a)(4) (1997). In the instant case, the evidence of record included a VA examination conducted in January 1995. This noted that he was able, without correction, to count fingers at 6 to 12 inches. During a personal hearing conducted in September 1995, he stated that he had trouble judging distances due to the severity of the left eye loss of vision. He also indicated that the eyesight of the left eye could not be corrected, since to do so would result in severe double vision. The veteran was examined by VA in February 1997. This noted that, without correction, he was able to count fingers at 3 feet. After a careful review of the evidence of record, it is found that entitlement to special monthly compensation due to loss of use of the left eye is not warranted. As noted above, loss of use is defined as an inability to recognize test letters at 1 foot, with further examination of the eye revealing that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. However, the objective evidence in this case, consisting of the February 1997 VA examination report, noted that the veteran was able to count fingers at 3 feet. Thus, he has not shown that he meets the definition of loss of use or blindness for purposes of entitlement to special monthly compensation. In conclusion, it is found that the preponderance of the evidence is against the veteran’s claim for entitlement to special monthly compensation for loss of use of the left eye. ORDER An increased evaluation for the service-connected left eye retina detachment with aphakia is denied. Special monthly compensation for loss of use of the left eye is denied. C. P. RUSSELL Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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. - 2 -