Citation Nr: 0206948 Decision Date: 06/27/02 Archive Date: 07/03/02 DOCKET NO. 00-18 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than May 4, 1998, for the grant of compensation under 38 U.S.C.A. Section 1151 and special monthly compensation for blindness in the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Kristi Barlow, Associate Counsel INTRODUCTION The veteran had active service from May 1972 to October 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted compensation under 38 U.S.C.A. Section 1151 for disability suffered as a result of VA treatment performed in October 1986, and granted special monthly compensation for the loss of the use of the left eye. The benefits awarded were assigned an effective date of May 4, 1998, and the veteran appealed the assignment of that date. FINDINGS OF FACT 1. The veteran suffered the loss of use of his left eye as a consequence of VA treatment performed in October 1986. 2. The veteran filed a claim for service connection for the loss of vision in both eyes on May 7, 1987. 3. The veteran's May 1987 claim was denied in a May 1987 rating decision. The veteran was informed of the decision and of his appellate rights, but did not appeal the decision. 4. The veteran filed a claim for 38 U.S.C.A. Section 1151 compensation as a result of the October 1986 VA treatment on May 4, 1998. CONCLUSION OF LAW The criteria for an effective date prior to May 4, 1998, for the grant of compensation under 38 U.S.C.A. Section 1151 and special monthly compensation for blindness in the left eye have not been met. 38 U.S.C.A. § 5110 (West 1991 & Supp. 2001); 38 C.F.R. § 3.400 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset of this decision, the Board finds that VA has met its duty to assist the veteran in the development of his claim for an effective date earlier than May 4, 1998, for the grant of compensation benefits as well as its duty to notify the veteran of any information and evidence needed to substantiate and complete this claim under the Veterans Claims Assistance Act of 2000 (VCAA) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)). Regulations implementing the VCAA have been enacted. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). By virtue of the statement of the case and supplemental statements of the case issued during the pendency of this appeal, the veteran and his representative were given notice of the information, medical evidence, or lay evidence necessary to substantiate the veteran's claim currently on appeal. The veteran was afforded a VA examination and all relevant records adequately identified by the veteran were obtained and associated with the claims folder. The veteran was also given the opportunity to appear and testify before both an RO Hearing Officer and a member of the Board to advance any and all arguments in favor of his claim. The veteran requests that the grant of compensation under 38 U.S.C.A. Section 1151 and special monthly compensation for the blindness that he has in his left eye be assigned an effective date prior to May 4, 1998, because he was injured as a consequence of VA treatment performed in October 1986, and originally requested compensation for the resulting disability in May 1987. The record shows that the veteran filed a claim for service connection for both eyes on May 7, 1987. In that claim, the veteran asserted that he had 20/20 vision before entering the service, that he began wearing glasses during his active duty service, and that he feared further deterioration of the vision in his right eye because of the, "loss of my left eye which is non service..." The veteran submitted a statement from a private ophthalmologist attesting to the facts that the veteran had undergone several operative procedures at the Dallas VA hospital in 1986 for a laceration of the left eye, and had totally inoperable retinal detachment in the left eye. The RO did not seek additional medical records and denied service connection for eye pathology in a May 1987 rating decision. The rating decision reflects a finding of no chronic eye pathology, stating that refractive error is a constitutional or developmental abnormality which is not considered to be a disability under the law for compensation purposes. The RO did not address a potential 38 U.S.C.A. Section 1151 claim. The veteran was given notice of this decision and of his appellate rights, but did not appeal. On May 4, 1998, the veteran submitted a request for 38 U.S.C.A. Section 1151 compensation, specifically stating that he had lost the use of his left eye as a consequence of treatment at a VA facility in October 1986. Copies of the veteran's treatment records dated in October 1986 were obtained and the veteran underwent VA examination in January 1999. He was found to have chronic retinal detachment in the left eye with no light perception and the examiner opined that better visual results could occur or be expected in other cases of similar injuries to the eye. Consequently, the RO resolved all reasonable doubt in favor of the veteran and found that his left eye blindness was a result of VA treatment in October 1986; 38 U.S.C.A. Section 1151 compensation and special monthly compensation for blindness in the left eye were awarded as of May 4, 1998, the date the veteran's claim was received. The law and regulations governing the assignment of effective dates specifically states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. The date entitlement arose may be assigned even if it is earlier than the date of receipt of claim only if the claim for disability compensation was received within one year of the veteran's separation from service. See 38 C.F.R. § 3.400(b)(2)(i). The Board notes at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Based on the evidence as outlined above, the Board finds that the veteran first filed a claim specifically for 38 U.S.C.A. Section 1151 compensation on May 4, 1998. The evidence regarding this point is not in relative equipoise so the doctrine of reasonable doubt is not triggered. Thus, based on this claim, the earliest possible effective date that may be assigned is May 4, 1998, because the claim was filed well over one year following the veteran's separation from service and the date of receipt of claim is later than the date entitlement arose, which is in October 1986. The argument the veteran favors, however, is that he should be assigned an effective date of May 7, 1987, as that is when he first filed a claim for compensation benefits for the deterioration of his vision. Although the Board expresses sympathy with the veteran's plight as it is apparent that his left eye blindness began as a consequence of VA treatment in October 1986, it is bound by the law in this case to assign an effective date no earlier than May 4, 1998. The veteran filed a claim for service connection for both eyes in May 1987, but did not specifically make a claim for 38 U.S.C.A. Section 1151 compensation. When the RO denied the veteran's claim for service connection, he did not appeal that decision nor did he express his desire to have it re-evaluated based on the medical evidence surrounding his October 1986 surgeries. Consequently, the RO's May 1987 decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Because the issue now on appeal is not whether the RO committed a clear and unmistakable error in its May 1987 decision, but rather whether the veteran is entitled to an effective date earlier than May 4, 1998, based on his May 4, 1998, claim, the Board cannot even entertain the assignment of an effective date based on the veteran's May 1987 claim. Therefore, the Board regrettably denies the veteran's claim for an effective date earlier than May 4, 1998, for the grant of compensation under 38 U.S.C.A. Section 1151 and special monthly compensation for blindness in the left eye. ORDER An effective date earlier than May 4, 1998, for the grant of compensation under 38 U.S.C.A. Section 1151 and special monthly compensation for blindness in the left eye is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.