UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

NO. 02-793

WILLIAM W. DEBEAORD, 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
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"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 anotherVA 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 ofthe July 1996RO 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 aTDIU 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
7

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.
8

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,
9

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 proclaimant 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 ofstatutory 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
10

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-serviceconnected 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:
11

(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 tracksthe 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
12

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
 See United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Timex V.I., Inc. v. United States,

1

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

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. It is incumbent on VA to interpret the statutory provision in such a way as to make sense

1

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 waynot dissimilar to a December 2002 liberalization that Congress made
14

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.
15

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
16

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, theBoard 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
17

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-serviceconnected 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-serviceconnected 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.
18

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.