William W. De Beaord , Jr. v. Anthony J. Principi , 18 Vet. App. 357 ( 2004 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 02-793
WILLIAM W. DE BEAORD , JR., APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided September 14, 2004 )
Mark R. Lippman, of La Jolla, California, was on the brief for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn
F. Washington, Deputy Assistant General Counsel; and Rebecca Ahern Baird, all of Washington,
D.C., were on the brief for the appellee.
Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.
STEINBERG, Judge: The appellant, through counsel, seeks review of a May 28, 2002,
Board of Veterans' Appeals (BVA or Board) decision that denied (1) an increased rating for
Department of Veterans Affairs (VA) service-connected postoperative residuals of a right-eye injury,
(2) special monthly compensation (SMC) based on bilateral blindness pursuant to 38 C.F.R.
§ 3.383(a)(1) (2001), and (3) a rating of total disability based on individual unemployability resulting
from a service-connected disability (TDIU) under 38 C.F.R. § 4.16 (2001). Record (R.) at 1-32. The
appellant and the Secretary each filed a brief, and the appellant filed a reply brief. For the reasons
set forth below, the Court will affirm the May 2002 BVA decision on appeal.
I. Relevant Background
The veteran served honorably on active duty in the U.S. Army from January 1946 until
March 1947. R. at 49. His separation examination report noted that he had "[p]oor eyesight" in the
"left" eye "due to [t]rauma [existing prior to service]"; that report also recorded that the veteran's
uncorrected left-eye vision was 20/20 and that his uncorrected right-eye vision was limited to light
perception only. R. at 53. Following his separation, the veteran filed a claim for VA service
connection for a right-eye injury. In October 1981, he underwent a VA compensation and pension
(C&P) medical examination; the examination report indicated that his corrected left- and right-eye
vision was 20/20 and 20/400, respectively, for both near and far vision. R. at 89. Later that month,
a VA regional office (RO) denied his claim for VA service connection because his separation
examination report had noted that his injury had existed prior to service. R. at 105, 107. In
September 1982, the veteran provided sworn testimony at a hearing before the VARO. R. at 150-55.
He testified that during service he had been struck by a bulldozer cable, resulting in scarring to his
right-eye pupil. R. at 150. Also at that hearing, the VA hearing officers opined that the veteran's
separation report was factually incorrect with regard to which eye had sustained an injury. R. at 151.
In October 1982, the RO granted service connection for a right-eye injury and assigned a 30% rating,
effective from July 24, 1980, under 38 C.F.R. § 4.84a, Diagnostic Code (DC) 6009 and DC 6077
(1982). R. at 182-83.
In June 1983, the veteran underwent another VA visual examination; that examination report
recorded the veteran's corrected left- and right-eye "distance" vision as 20/20 and "count fingers at
6 feet", respectively. R. at 192. Thereafter, the veteran filed multiple unsuccessful claims for an
increased rating for his right-eye disability. R. at 200, 215, 239, 246, 256-57. In November 1988,
he underwent a penetrating keratoplasty (cornea transplant) of his right eye; the surgery report
indicated that at that time his left-eye visual acuity was "20/40 +1 with best correction" and his
right-eye visual acuity was "count fingers". R. at 230. In May 1992, he filed another
increased-rating claim, stating that "[b]oth of [his] eyes [we]re getting much worse." R. at 274. In
March 1993, the RO denied that claim because "evidence of visual acuity of 5/200 or less [had] not
[been] demonstrated." R. at 461. The RO also denied service connection for any visual impairment
of the left eye because that disability had not manifested itself until many years after service and was
not shown to be secondary to his service-connected right-eye injury. Ibid. In July 1993, a VA
ophthalmology examination report noted that the veteran had been diagnosed with glaucoma, that
his corrected left- and right-eye vision was 20/30 +2 and 20/400, respectively, and that his right-eye
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decreased vision was "at least partly secondary to the corneal transplant." R. at 544-45. Subsequent
outpatient treatment records reported that he had been diagnosed as "legally blind" in the right eye
and had experienced "gradually decreasing vision" in the left eye, both in "acuity" and "field". R. at
574. In January 1995, he was hospitalized for "[r]apid progressive optic neuropathy", "[g]laucoma",
and "[s]tatus post left parietal occipital infarction". R. at 565. His hospitalization record noted that
he had "decreased peripheral vision" of his left eye and "rapid vision loss . . . which [could ]not be
explained totally by his glaucoma." R. at 565-66.
In February 1996, the RO (1) denied a rating in excess of 30% for the veteran's right-eye
disability, (2) granted SMC based on loss of use of one eye, having only light perception, and
(3) denied SMC based on aid and attendance for bilateral blindness. R. at 625-26. The RO noted
that his claims had been denied, in part, because of his failure to report for his scheduled VA C&P
examination. Ibid. Thereafter, the veteran underwent that examination in June 1996. R. at 617-22.
The examination report recorded his left eye as having 20/60 uncorrected and 20/30 corrected near
vision and 20/80 uncorrected and 20/40 corrected far vision; his uncorrected near- and far-right-eye
vision was recorded as light perception and his corrected right-eye vision as 20/400. R. at 617. The
report also indicated that he had bilateral glaucoma and that he had a visual-field deficit in his left
eye with concentric contraction to less than 30 degrees but no more than 15 degrees, thus making
his left-eye vision equivalent to 20/100. R. at 617-19. In July 1996, the RO found that he did not
have loss of use of the left eye as defined for VA purposes to mean "light perception with [the]
inability to recognize test letter[s] at one foot and when counting fingers can not [sic] be
accomplished at 3 feet" and thus again denied his claim for an increased rating. R. at 653 (citing
38 C.F.R. § 4.79 (1995)). The veteran then filed a Notice of Disagreement (NOD) as to that RO
decision (R. at 656) as well as an application for a TDIU rating (R. at 659-60). In February 1997,
the RO denied his TDIU-rating claim and determined that the issue was "part and parcel" of the
appeal of the July 1996 RO decision (R. at 689-90) and issued a Supplemental Statement of the Case
(SSOC) that addressed all three of the veteran's claims. R. at 694-98.
In May 1997, the RO received correspondence from Dr. Terri Key, chief of ophthalmology
at the Reno, Nevada, VA Medical Center; Dr. Key indicated that the veteran had "end[-]stage
glaucoma and a cataract" and "a best corrected vision of 20/50 -2" in his left eye and opined that the
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veteran was "severely visually impaired". R. at 716. In March 1999, the Board remanded the
veteran's claims for further development and readjudication. R. at 758-67. In June 1999, a VA
examining physician recorded that the veteran's left- and right-eye vision was "20/60" and "count
fingers", respectively, and opined that he was "severely impaired" "given the longstanding history
of visual loss [in his right eye] and progressive glaucoma [in his left eye] and [the] small amount of
central island of vision remaining in the left eye." R. at 841. The examining physician further stated
that, although the left-eye vision was "still 20/60, the amount of visual field [was] very small [and]
causes great functional impairment." Ibid. With reference to these findings, the RO issued an SSOC
indicating that the veteran's claims for an increased rating, for SMC based on bilateral blindness, and
for a TDIU rating had been denied. R. at 849-51. The veteran appealed that decision to the Board,
and in March 2000 the Board issued a decision also denying those three claims. R. at 864-97.
Subsequently, the veteran filed another increased-rating claim asserting that he was "legally
blind in both eyes". R. at 900. A June 2000 C&P examination report recorded his
corrected-right-eye near and far vision as "light perception" and his corrected-left-eye near and far
vision as 20/400; the report also indicated that his left-eye visual field was "severely constricted" "to
around 15 degrees of center vision" and that he was "legally blind". R. at 903-04, 906. In
November 2000, the RO again denied the veteran's claim for an increased rating because the
evidence did not "show blindness in the non[-]service-connected left eye." R. at 914-17. The
veteran appealed that RO decision to the Board, and in September 2001 the Court vacated a March
2000 BVA decision and remanded the matters for readjudication in light of the enactment of the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096. DeBeaord
v. Principi, No. 00-574, 2001 WL 1538510 (Vet. App. Sept. 18, 2001).
In the May 2002 BVA decision here on appeal, the Board, inter alia, chronicled the various
medical-examination findings and denied an increased disability rating, an increased rate of SMC,
and a TDIU rating. R. at 20-32. The Board first noted that the veteran was then rated as 30%
disabled, the maximum schedular rating for blindness in a service-connected eye with no blindness
in the other, non-service-connected eye. R. at 22. The Board stated that "[f]or VA purposes,
blindness will be held to exist when there is an inability to recognize test letters at 1 foot (.30
meters), and when further examination of the eyes reveal[s] that perception of objects, hand
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movements[,] or counting fingers cannot be accomplished at 3 feet (.91 meters)." R. at 22 (citing
38 C.F.R. §§ 3.350 and 4.79 (2001)). As to the applicable definition of blindness, the Board
concluded as follows:
The argument has also been made that the applicable regulatory
provisions of 38 U.S.C.[] § 1160 and 38 C.F.R. § 3.383 do not set
forth a precise definition of "blindness" for VA rating purposes. It is
contended that in the absence of a definition specifically noted in
these provisions, that [sic] the RO should utilize the definition for
"legal blindness" for purposes of establishing entitlement to benefits.
It is noted that while a definition of blindness is purportedly noted in
the context of 38 C.F.R. § 4.79, there is no clinical basis noted in
support of VA's reliance on such this [sic] interpretation. The Board
does not agree.
R. at 27. The Board, relying upon the definition of blindness set forth in 38 C.F.R. § 4.79,
determined that the appellant's "left[-]eye [vision] does not meet . . . VA requirements to be
considered blind" and thus denied a rating in excess of 30% on the basis of its conclusion that "the
veteran cannot, as a matter of law, be considered blind in his left eye for VA purposes" because the
veteran's left-eye visual acuity of 20/400 and constriction of the visual field to 10-15 degrees did not
equate to blindness as defined by VA. R. at 22.
With regard to the veteran's SMC claim, the Board determined that the requirements for SMC
at a rate other than that which the appellant was then assigned had not been met because the veteran
was not blind in the left eye. Ibid. As to the veteran's claim for a TDIU rating, the Board noted that
the veteran had only one service-connected disability, rated as 30% disabling, which did not meet
the rating threshold necessary to be awarded a TDIU rating. R. at 29. The Board then considered
whether an extraschedular rating was appropriate. Ibid. In denying an extraschedular rating, the
Board found that, although "the veteran [was then] unemployable, . . . the veteran's sole
service[-]connected disability of right[-]eye blindness [did] not alone render him unemployable."
R. at 31.
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II. Analysis
A. Contentions of Parties
On February 27, 2003, the appellant filed a brief in which he argues that the May 2002 Board
decision should be reversed and the matters remanded because the Board erred by applying 38 C.F.R.
§ 4.79 (2001) in order to define "blindness" for purposes of 38 U.S.C. § 1160(a)(1). Brief (Br.) at
8-13. He asserts that, by failing to define blindness in section 1160(a)(1), Congress intended a
"common" or "legal" definition of the word. Br. at 10, 12. As evidence in support of his argument,
he points to the fact that Congress has, in other sections of title 38, U.S. Code, defined "blindness"
and has not amended the language of section 1160(a)(1) or incorporated the language of § 4.79
despite having amended several times other portions of that same statutory provision. Br. at 11-12.
The appellant also contends that any ambiguity in section 1160(a)(1) should be resolved in his favor.
Br. at 12 (citing Brown v. Gardner, 513 U.S. 115, 118 (1994)). He further states that his claims for
an increased rating, for SMC, and for a TDIU rating are "inextricably intertwined" with the definition
of blindness under section 1160(a)(1) and therefore must be remanded for further development and
adjudication. Br. at 13.
The Secretary counters that, under 38 C.F.R. § 4.84a, DC 6070 (2001), the appellant is not
entitled to an increased rating because he "is receiving the maximum schedul[a]r rating for blindness
in one, service-connected eye." Br. at 12. He also asserts that, for purposes of section 1160(a)(1),
the Board's interpretation of "blindness", as defined in § 4.79, is reasonable because it is identical
to the definition of "blindness" that Congress set forth in 38 U.S.C. § 1114(k), as implemented at
38 C.F.R. § 3.350(a)(4), and should, therefore, under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), be upheld. Br. at 13-15, 19-20. He contends that,
because "Congress had ample opportunity to change the language regarding blindness",
congressional silence is equivalent to congressional approval of VA's implementation and
interpretation of section 1160(a)(1). Br. at 16-17. With regard to the TDIU-rating claim, the
Secretary argues for affirmance of the Board decision because the appellant's schedular disability
rating does not meet the 60% regulatory threshold for a TDIU rating under 38 C.F.R. § 4.16. Br. at
18. As to the appellant's argument that a "legal" definition of blindness should apply for purposes
of section 1160(a)(1) and § 3.383(a)(1), the Secretary asserts that it is without merit and unsupported
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by authority. Br. at 19.
In reply, the appellant asserts that congressional intent on the issue is clear and therefore
Chevron is not applicable to the instant case. Reply at 2-5. He argues, with supporting
documentation, that, at the time that Congress enacted section 1160, blindness was generally defined
as "central visual acuity of no greater than 20/200 in the better eye with corrected vision." Reply at
6-7 (citing, e.g., HELGA LENDE, FEDERAL LEGISLATION CONCERNING BLIND PERSONS IN THE UNITED
STATES AND INSULAR POSSESSIONS, 5 (American Foundation for the Blind, Legislation Series No.
1, 1958)).
B. Applicable Law and Regulation
Chapter 11 of title 38, U.S. Code, governs claims for compensation by veterans for their
service-connected disabilities. Section 1160(a)(1) of title 38, U.S. Code, allows for special
consideration for certain cases of loss of paired organs; specifically, that section provides, in
pertinent part:
Where a veteran has suffered (1) blindness in one eye as a result of
service-connected disability and blindness in the other eye as a result
of non-service-connected disability not the result of the veteran's own
willful misconduct . . . the Secretary shall assign and pay to the
veteran the applicable rate of compensation under this chapter as if
the combination of disabilities were the result of service-connected
disability.
38 U.S.C. § 1160(a)(1) (2003). The regulation implementing 38 U.S.C. § 1160 provides, in pertinent
part (the following regulatory cites are to the current regulation, which was the same at the time of
the May 2002 BVA decision):
Compensation is payable for the combinations of service-connected
and non[-]service-connected disabilities specified in paragraphs (a)(1)
through (a)(5) of this section as if both disabilities were service
connected, provided the non[-]service-connected disability is not the
result of the veteran's own willful misconduct.
(1) Blindness in one eye as a result of service-connected
disability and blindness in the other eye as a result of
non-service-connected disability.
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38 C.F.R. § 3.383(a)(1) (2003). Section 4.79, of title 38, Code of Federal Regulations, provides:
Loss of use or blindness of one eye, having only light perception, will
be held to exist when there is inability to recognize test letters at 1
foot (.30m.) and when further examination of the eyes reveals that
perception of objects, hand movements[,] or counting fingers cannot
be accomplished at 3 feet (.91m.), lesser extents of visions,
particularly perception of objects, hand movements, or counting
fingers at distances less than 3 feet (.91 m.), being considered of
negligible utility. With visual acuity 5/200 (1.5/60) or less or the
visual field reduced to 5[ degrees] concentric contraction, in either
event in both eyes, the question of entitlement on account of regular
aid and attendance will be determined on the facts in the individual
case.
38 C.F.R. § 4.79 (2003).
C. Definition of Blindness for Section 1160 Purposes
Regarding the appellant's argument that the Board erred in utilizing § 4.79 in order to define
"blindness" for purposes of the paired-organ provisions of section 1160 and § 3.383, he asserts that
§ 4.79 imposes a stricter standard of blindness than that of section 1160 and is thus inconsistent with
the plain language and the underlying purpose of that statutory provision. Br. at 9. The Court
interprets a statute de novo. See Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc). "'The starting
point in interpreting a statute is its language.'" Lee (Raymond) v. West, 13 Vet.App. 388, 394 (2000)
(quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993)).
The "plain meaning [of a statute] must be given effect unless a 'literal
application of [the] statute [or regulation] will produce a result
demonstrably at odds with the intention of its drafters.'" Gardner v.
Derwinski, 1 Vet.App. 584, 586-87 (1991), aff'd sub nom. Gardner v.
Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 . . . (1994);
Fagan[ v. West], 13 Vet.App. [48,] 52 [(1999)]; Curtis[ v. West],
11 Vet.App. [129,] 133 [(1998)]. "If the intent of Congress is clear,
that is the end of the matter". Skinner v. Brown, 27 F.3d 1571, 1572
(Fed. Cir. 1994) (quoting Chevron, [467 U.S. at 842]), aff'ing 4
Vet.App. 141 (1993) (mem.).
Lee (Raymond), supra. "'[E]ach part or section [of a statute] should be construed in connection with
every other part or section so as to produce a harmonious whole.'" Meeks v. West, 12 Vet.App. 352,
8
354 (1999) (quoting 2A N. SINGER SUTHERLAND ON STATUTORY CONSTRUCTION § 46.01 (5th ed.
1992)), aff'd, 216 F.3d 1363 (Fed. Cir. 2000); see Cottle v. Principi, 14 Vet.App. 329, 334 (2001);
Talley v. Derwinski, 2 Vet.App. 282, 286 (1992).
"[I]t [is] fundamental that a section of a statute should not be read in
isolation from the context of the whole act, and that in fulfilling our
responsibility in interpreting legislation, 'we must not be guided by a
single sentence or member of a sentence, but [should] look to the
provisions of the whole law, and to its object and policy.'"
Moreau v. Brown, 9 Vet.App. 389, 396 (1996) (quoting Richards v. United States, 369 U.S. 1, 11
(1962) (quoting Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285 (1956))), aff'd, 124 F.3d 228 (Fed.
Cir. 1997). Under Chevron, a reviewing court generally must defer to permissible agency
constructions of a statutory provision, if "Congress has not directly addressed the precise question at
issue." Chevron, 467 U.S. at 843; see Barnhart v. Walton, 535 U.S. 212, 217-18 (2002). However,
a competing principle of statutory construction particularly applicable in this Court is that, where a
veterans benefits statute is ambiguous, "interpretive doubt is to be resolved in the veteran's favor."
Gardner, 513 U.S. at 118; see Allen (Alfred) v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (applying
Gardner principle to rule in appellant's favor on question of statutory interpretation).
Even where the meaning of a statutory provision is ambiguous, the Court must take care not
to invalidate otherwise reasonable agency regulations simply because they do not provide for a pro-
claimant outcome in every imaginable case. In Disabled American Veterans v. Gober (DAV v. Gober),
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) characterized the Gardner doctrine
as "modifying the traditional Chevron analysis" but cautioned that a veteran "'cannot rely upon the
generous spirit that suffuses the law generally to override the clear meaning of a particular provision.'"
DAV, 234 F.3d 682, 692 (Fed. Cir. 2000) (emphasis added) (citing Boyer v. West, 210 F.3d 1351,
1355 (Fed. Cir. 2000) (quoting Smith (William A.) v. Brown, 35 F.3d 1516, 1526 Fed. Cir. (1994))).
The Federal Circuit has also stated in discussing the Chevron standard and Gardner cannon of
construction: "Moreover, where the application of customary canons of statutory construction points
in opposite directions, we resort to the Chevron principle." Paralyzed Veterans of Am. v. Sec'y of
Veterans Affairs (PVA v. Secretary), 345 F.3d 1334, 1340 (Fed. Cir. 2003) (citing Nat'l Org. of
9
Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1377 (Fed. Cir. 2001)).
The basic purpose of the chapter 11 compensation provisions is to recompense veterans for
conditions that are a result of or arise during their service. See 38 U.S.C. § 1110 ("[f]or disability
resulting from personal injury suffered or disease contracted in line of duty . . . during a period of war,
the United States will pay to any veteran thus disabled . . . compensation as provided in this
subchapter"); 38 U.S.C. § 1131 ("[f]or disability resulting from personal injury suffered or disease
contracted in line of duty . . . during other than a period of war, the United States will pay to any
veteran thus disabled . . . compensation as provided in this subchapter"). Section 1160(a) makes a
clear exception to this policy of compensating for only those conditions that were incurred or
aggravated in service. Section 1160(a)(1) provides that a veteran who has suffered "blindness in one
eye as a result of service-connected disability and blindness in the other eye as a result of non-service-
connected disability" will be assigned and paid the "applicable rate of compensation . . . as if the
combination of disabilities [was] the result of service-connected disability", 38 U.S.C. § 1160(a)(1)
– in other words, the veteran will be paid disability compensation as if the non-service-connected
vision impairment in one eye were service connected, even though it is not, as long as the impairment
in the other eye is service-connected blindness. Section 1160 contains no definition for the term
"blindness". See 38 U.S.C. § 1160. Elsewhere in chapter 11, however, Congress has provided the
following six differing definitions of blindness that is service connected: (1) "[H]aving only light
perception", 38 U.S.C. § 1114(k); (2) "blind in both eyes, with 5/200 visual acuity or less", 38 U.S.C.
§ 1114(l); (3) "blindness in both eyes, rendering such veteran so helpless as to be in need of regular
aid and attendance", 38 U.S.C. § 1114(m); (4) "without light perception in both eyes", 38 U.S.C.
§ 1114(n); (5) "anatomical loss of both eyes", ibid.; and (6) "service-connected blindness having only
light perception or less", 38 U.S.C. § 1114(o), (p). Hence, although "blindness" is not defined in
section 1160 for paired-organ compensation purposes, it is defined repeatedly in section 1114 for
purposes of providing additional compensation (SMC) to veterans who have service-connected
blindness in both eyes under the rating schedule; such veterans are entitled to a 100% schedular rating
under 38 C.F.R. § 4.84a, as described below.
Specifically, the Secretary has provided in 38 C.F.R. § 4.84a the following DCs for assigning
a 100% rating to the service-connected impairment of both eyes in terms of central visual acuity:
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(1) Anatomical loss of both eyes (DC 6061); (2) blindness in both eyes having only light perception
(DC 6062); (3) anatomical loss of one eye and 5/200 vision in the other eye (DC 6063); (4) blindness
in one eye having only light perception and 5/200 vision in the other eye (DC 6067); and (5) vision
in each eye of 5/200 (DC 6071). 38 C.F.R. § 4.84a, DCs 6061, 6062, 6063, 6067, 6071 (2003). These
criteria generally follow the definitions provided for SMC purposes in statutory section 1114,
described above, with two exceptions: First, there does not appear to be a § 4.84a regulatory definition
that tracks the subsection (m) reference to "blindness in both eyes, rendering such veteran so helpless
as to be in need of regular aid and attendance", 38 U.S.C. § 1114(m); see 38 C.F.R. § 3.350(c)(1)(v);
second, in DC 6080 the Secretary has provided a 100% rating for impairment of field vision that is
"concentric contraction to . . . 5º . . . [b]ilateral". 38 C.F.R. § 4.84a, DC 6080 (2003); see 38 C.F.R.
§ 3.350(b)(2) (2003) (providing that "[c]oncentric contraction of the field of vision beyond 5 degrees
in both eyes is the equivalent of 5/200 visual acuity" and thereby warrants payment of SMC at the
subsection (l) level). Given what appear to be seven different regulatory definitions, it surely would
have been far preferable for the Secretary to have included a definition of blindness in § 3.383(a)(1)
and the resulting "'confusing tapestry' of VA regulations . . . should be the subject of review and
reevaluation by the Secretary." Zang v. Brown, 8 Vet.App. 246, 255 (1995) (Steinberg, J., separate
views) (citing, inter alia, Talley, 2 Vet.App. at 285-86, 288, and Hatlestad v. Derwinski, 1 Vet.App.
164, 167 (1991)).
Nonetheless, the Board here, rather than looking to the multiple alternative definitions of
blindness set forth in part 3 of title 38 of the Code of Federal Regulations, as described above, for
purposes of the payment of 100% schedular disability compensation and of SMC as well for
service-connected blindness of both eyes, seemed to be relying on § 4.79 in determining the appellant's
entitlement to a section 1160 100% rating. Although the Board does cite to § 3.350 in its decision
(R. at 22), there is no analysis of the § 3.350 criteria in connection with the appellant's increased-rating
claim (see R. at 20-24; thus, it appears that § 4.79 was the only regulatory section considered by the
Board. However, § 4.79, which has the heading "Loss of use of one eye, having only light perception",
merely defines light perception and has no apparent applicability to rating bilateral blindness, except
for a reference to "both eyes" in the second sentence that is seemingly inconsistent with the heading
of the section. To the extent that § 4.79 does track the blindness DCs described above, it is not clear
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that that section includes (1) "blind[ness] in both eyes, with 5/200 visual acuity or less", 38 U.S.C.
§ 1114(l); see 38 C.F.R. § 4.84a, DC 6071, or (2) blindness as a result of the "[c]oncentric contraction
of the field of vision beyond 5 degrees in both eyes", 38 C.F.R. § 3.350(b)(2); see 38 C.F.R. § 4.84a,
DC 6080. Regarding the second sentence in § 4.79, it appears to indicate only that a veteran can
qualify for aid and attendance, rather than specifying a rating percentage, if the visual field in both eyes
is reduced to 5 degrees concentric contraction or the vision is 5/200. As to the degree of vision
impairment that must accompany helplessness for purposes of subsection (m) SMC, the Secretary has
specified that the veteran must have 5/200 or less vision in both eyes. 38 C.F.R. § 4.84a, Table IV,
footnote 1 (2003). In that regard, we note that Table IV is partially headed "Table for Rating Bilateral
Blindness" and thus could be perceived as setting forth definitions to be used for purposes of the
application of section 1160 and § 3.350 in determining whether there is bilateral blindness. However,
placing much reliance on Table IV for assigning schedular ratings would appear questionable given
that the content of that table relates only to the payment of SMC under specific section 1114
subsections (l), (m), and (n) and does not refer to the field-vision blindness set forth in DC 6080,
described above. Moreover, the authority for prescribing Table IV is shown as 38 U.S.C. § 1115("Additional compensation for dependents"), but there is nothing in section 1115 or the corresponding
text of § 4.84a to explain the purpose of Table IV. Although section 1114 appears to be the correct
authority for this table, which seems to be an explanation of what is provided for as to blindness in
§ 3.350, there is no cross-reference in § 3.350 to this table or in this table to § 3.350. The closest
pertinent reference is footnote 5 (coming without any antecedent footnotes 1, 2, 3, or 4) stating "[a]lso
entitled to [SMC]", that follows Table V ("Ratings for Central Visual Acuity Impairment"), a table that
appears to summarize in tabular form what is provided for in DCs 6071 to 6079.
Despite this virtually incomprehensible array of loosely connected or unconnected tables and
footnotes and DCs, see Zang, Talley, and Hatlestad, all supra, we find the basic principle of the
statutory and regulatory provisions at issue, section 1160(a)(1) and § 3.383(a)(1), quite clear: If the
impairment of a veteran's vision would result in a 100% rating if the impairment in both eyes were
service connected but the impairment in one eye actually was not service connected, then VA is to pay
compensation as though the non-service-connected vision impairment in one eye were service
connected. Accordingly, the Secretary has no alternative but to apply each of the seven regulatory
12
definitions of blindness to the non-service-connected eye in order to determine whether, under any of
those definitions, the appellant is entitled to the benefit of the special "paired organ" provision. Hence,
consideration must be given to (1) § 3.350 and § 4.84a, Table IV, as to SMC, (2) § 4.84a, DCs 6061,
6062, 6063, 6067, and 6071 and Table V, as to impairment of central visual acuity, and (3) § 4.84a,
DC 6080, as to impairment of field vision.
Moreover, even though the Secretary's regulations do not contain an explicit definition of
blindness for section 1160(a)(1) and § 3.383(a)(1) purposes, it is also clear to the Court that the
"common" or "legal" definition that the appellant seeks to have applied cannot be the recognized
definition of blindness, because to define blindness for purposes of section 1160(a)(1) and regulation
§ 3.383(a)(1) in terms other than those already set forth in chapter 11 of title 38 of the U.S. Code and
part 3 of title 38 of the Code of Federal Regulations in order to assess bilateral service-connected
blindness would contradict the section 1160(a)(1) "as if" language. Moreover, applying the more
generous definition that the appellant proposes would result in compensating a veteran for a
non-service-connected degree of impaired vision at a rate higher than the rate that would apply if the
same degree of vision impairment had resulted from service. This would be an absurd result that
Congress could not have intended and is not, therefore, one that could possibly be adopted in a VA
regulation.1 It is incumbent on VA to interpret the statutory provision in such a way as to make sense
in the context of the full statutory scheme for disability compensation set forth in chapter 11 of title
38, U.S. Code, of which both sections 1114 and 1160 are a part. See United Sav. Ass'n of Tex. v.
Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (stating that "[a] provision that may seem
ambiguous in isolation is often clarified by the remainder of the statutory scheme – because the same
terminology is used elsewhere in a context that makes its meaning clear or because only one of the
permissible meanings produces a substantive effect that is compatible with the rest of the law")
(citations omitted). Finally, the appellant, in essence, is seeking to have the Court rewrite section
1160(a)(1) for blindness in a way not dissimilar to a December 2002 liberalization that Congress made
1
See United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Timex V.I., Inc. v. United States,
157 F.3d 879, 886 (Fed. Cir. 1998); Trilles v. West, 13 Vet.App. 314, 324 (2000) (en banc); Simmons v. Principi, 17
Vet.App. 104, 114 (2003); Thayer v. Principi, 15 Vet.App. 204, 210 (2001); Cottle v. Principi, 14 Vet.App. 329, 334
(2001); Faust v. West, 13 Vet.App. 342, 350 (2000); Davenport v. Brown, 7 Vet.App. 476, 483-84 (1995); Conary v.
Derwinski, 3 Vet.App. 109, 111-12 (1992) (per curiam order) (Steinberg, J., concurring).
13
to section 1160(a)(3) for deafness, at which time Congress made no change to section 1160(a)(1) for
blindness. See Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 103, 116 Stat. 2820 (eliminating
requirement of total deafness for purposes of paired-ear hearing loss); 69 Fed. Reg. 48,148, 48,149-50
(Aug. 9, 2004) (amending 38 C.F.R. § 3.383(a)(3)). The remedy that the appellant seeks is therefore
within the province of the legislative and executive branches, which, respectively, make and execute
the laws.
Because we find no ambiguity in the statutory or regulatory scheme that would permit
"blindness", for section 1160/§ 3.383 purposes, to be interpreted as the appellant contends, we are not
called upon to address the appellant's argument that any ambiguity in section 1160(a)(1) should be
resolved in his favor (Br. at 12) or to consider the application of the doctrine of Gardner, supra,
regarding resolving "interpretive doubt", given the Federal Circuit's discussion in PVA v. Secretary,
supra, that seems to bypass the Supreme Court's Gardner directive. If we had been required to deal
with an ambiguous statutory scheme, however, it is not altogether clear that we would have to abandon
the directive of the Supreme Court in Gardner, that "interpretive doubt is to be resolved in the
veteran's favor", a directive derived from King v. St. Vincent's Hospital, 502 U.S. 215, 220-21, n.9
(1991), a case issued seven years after Chevron, that applied that interpretive principle to "read [a
regulation] in [the veteran's] favor", and that drew that principle from Fishgold v. Sullivan Drydock
& Repair Corp., 328 U.S. 275, 285 (1946), a case decided long before Chevron. Not only was that
canon confirmed by the Supreme Court in Gardner ten years after Chevron, but it is one tailored
specifically to veterans benefits statutes as contrasted with the more general statutory-construction
principle set forth in Chevron, supra. Cf. Edmond v. United States, 520 U.S. 651, 657 (1997) (stating
that "[o]rdinarily, where a specific provision conflicts with a general one, the specific governs");
HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (per curiam) (noting that "it is a basic principle
of statutory construction that a specific statute . . . controls over a general provision . . . , particularly
when the two are interrelated and closely positioned"); Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir.
2001) (applying the "well-established canon of statutory construction that when two statutes cover the
same situation, the more specific statute takes precedence over the more general one"). In the last
analysis, guidance from the Supreme Court would appear necessary to resolve this matter definitively.
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D. Increased-Rating Claim
The appellant urges us to reverse the BVA decision's denial of a paired-organ rating under
section 1160/§ 3.383. That we cannot do. The assignment of a rating to a particular disability is a
question of fact, which is reviewable in this Court under the "clearly erroneous" standard set forth in
38 U.S.C. § 7261(a)(4). See Butts, 5 Vet.App. at 535-37; id. at 542 (Steinberg, J., concurring) (citing
Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990)). Under that deferential standard, this Court may
reverse a BVA finding of fact as clearly erroneous only when, "'although there is evidence to support
it, . . . [we] on the entire evidence [are] left with the definite and firm conviction that a mistake has
been committed'", Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)), such as when there is no "'plausible' basis" in the record,
"'viewed in its entirety'", for such a BVA determination, id. at 52-53 (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)); see Mariano v. Principi, 17 Vet.App. 305, 313 (2003)
(applying "clearly erroneous" standard to assess, as directed by 38 U.S.C. § 7261(b)(1), Board
application of 38 U.S.C. § 5107(b) "equipoise standard").
In denying a rating in excess of 30% for the appellant's service-connected postoperative
residuals, the Board reviewed the appellant's VA medical examination reports and found that the
appellant's 20/400 left-eye vision in June and July 2000, although "significantly worse than that of
20/60 . . . [in] 1999, . . . still does not meet the definition of blindness for VA purposes." R. at 22. The
Board noted that the appellant was "receiving the maximum [rating] for . . . blindness in the
service-connected right eye, [with] no blindness in his non[-]service-connected left eye." Ibid.Although the Board was not correct in applying the definition of blindness found in § 4.79 because that
regulation merely defines light-perception blindness and does not provide specifically that a veteran
is blind if the visual field in both eyes is reduced to 5 degrees concentric contraction or the vision is
5/200, see 38 C.F.R. § 4.84a, DCs 6067, 6071, 6080, the Board, nonetheless, did in fact consider the
appellant's left-eye visual acuity in connection with the alternative regulatory definitions of blindness,
and concluded correctly, as to each such definition, that the appellant was not blind in his left eye for
VA-compensation purposes. Specifically, the Board stated that (1) "there is no evidence of enucleation
or a serious cosmetic defect in addition to total loss of vision in the right eye"; (2) "the [appellant] was
shown to have vision in the left eye of 20/400" – that is, that his vision deficiency was not 5/200, the
15
minimum deficit that would seem to warrant a 100% rating for service-connected blindness; and (3)
"[t]he worst constriction of the [appellant]'s visual field . . . was . . . to only 10-15 degrees . . . [and he]
has never been found to have a visual field contraction limited to 5 degrees" – that is, not a constriction
that would warrant a 100% rating under DC 6080. R. at 22. Therefore, the Board had a plausible basis
in the record, viewed in its entirety, for finding that, for section 1160/§ 3.383 paired-organ purposes,
the appellant is not blind in his left eye, see Gilbert, supra; hence, the Court cannot conclude that the
denial of a 100% rating pursuant to section 1160/§ 3.383 was clearly erroneous. See 38 U.S.C.
§ 7261(a)(4).
E. Increased-SMC Claim
The appellant is currently receiving SMC at the subsection (k) rate. He sought an increased
SMC rate, which the Board denied; he now argues for a remand of his SMC claim because it is
"inextricably intertwined with the applicable definition of blindness." Br. at 13. In denying the
appellant's claim for SMC based on bilateral blindness, the Board discussed all relevant statutory and
regulatory provisions and stated:
[T]he veteran's left eye does not meet . . . VA requirements to be
considered blind, nor does the appellant have a service-connected
disability of the left eye. The worst corrected rating of the veteran's left
eye, 20/400, with visual field constriction of 10-15 degrees, does not
meet . . . VA's definition of blindness. Thus, the requirements for
[SMC] at any rate other than the present rate prescribed by [section]
1114(k) have not been met.
R. at 28. Because the Court has concluded in part III.D, above, that section 1160 blindness has been
defined within the statutory and regulatory scheme and is, therefore, affirming the Board decision as
to paired-organ rating entitlement and the appellant makes no other arguments regarding an
increased-SMC claim, the appellant has provided no basis for a remand as to that claim.
F. TDIU-Rating Claim
Basic eligibility for TDIU requires, inter alia, that the veteran be unable to secure or follow a
substantially gainful occupation because of service-connected disabilities and have "disabilities
resulting from common etiology or a single accident" that have been assigned a combined rating of
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at least 60%. 38 C.F.R. § 4.16(a)(2) (2003); see Roberson v. Principi, 251 F.3d 1378, 1384 (2001)
(holding that VA must consider TDIU rating "once a veteran submits evidence of a medical disability
and makes a claim for the highest rating possible, and additionally submits evidence of
unemployability"); see also Norris (Robert) v. West, 12 Vet.App. 413, 419-21 (1999) (concluding that
appellant had presented informal claim for TDIU rating when he had been assigned service-connected
rating of at least 60% and record on appeal contained evidence of unemployability due to that
disability). Moreover, veterans "who are unemployable by reason of service-connected disabilities,
but who fail to meet the percentage standards set forth in [38 C.F.R. § 4.16(a)]" should be given
extraschedular consideration under § 4.16(b). 38 C.F.R. § 4.16(b) (2003).
In the instant case, the appellant also argues for a remand of his TDIU-rating claim because it
is "inextricably intertwined with the applicable definition of blindness." Br. at 13. Here, the appellant
is service connected for one disability – the postoperative residuals of a right-eye injury, rated at 30%.
Having determined that the appellant cannot be considered "blind" in his left eye for purposes of
section 1160(a)(1), the Court holds that the Board correctly concluded that, because "the only
condition for which service connection has been established is not rated at least 60[%] disabling, the
criteria for a [schedular TDIU] rating under the provisions of . . . § 4.16(a) are not met." R. at 29. In
evaluating whether there were circumstances in the appellant's case, apart from any non-service-
connected condition and advancing age, that would justify an extraschedular TDIU rating under
§ 4.16(b), the Board noted that the medical evidence of record "suggests that the appellant is indeed
unemployable" but "clearly shows that such unemployability is the result of multiple non-service-
connected disabilities." R. at 31. Because the evidence does not show that the appellant's right-eye
injury, by itself, renders him unemployable, the Court concludes that a plausible basis exists for the
Board's decision with respect to the claim for an extraschedular TDIU rating, see Gilbert, supra.
Therefore, the Court cannot conclude that the Board's denial of an extraschedular TDIU rating was
clearly erroneous. See 38 U.S.C. § 7261(a)(4); Gilbert, supra.
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III. Conclusion
On the basis of the above analysis, the record on appeal, and the parties' pleadings, the Court
holds that the appellant has not demonstrated that the BVA committed error – in its findings of fact,
conclusions of law, compliance with procedural requirements, articulation of reasons or bases, or
application of the equipoise standard – that would warrant reversal or remand under 38 U.S.C.
§§ 1110, 5107, 7104(a) or (d)(1), or 7261. Accordingly, the Court will affirm the May 2002 Board
decision.
AFFIRMED.
18