Citation Nr: 1308753 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-50 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date prior to December 12, 2005, for special monthly compensation (SMC) based on blindness in the right eye with only light perception. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from June 1973 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) from a May 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Custody of this case was subsequently transferred to the Atlanta, Georgia, RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. The Veteran testified at a December 2012 videoconference before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is contained in Virtual VA. At the hearing the Veteran submitted additional evidence, along with a waiver of initial RO consideration of that evidence. At the videoconference it was pointed out that the Veteran "was trying to get service connection for his left eye, secondary to the right eye glaucoma [and that he had] already opened a claim for that." However, it was agreed that this matter was not currently on appeal. See pages 3 and 4 of the transcript. As this matter has not been adjudicated by the RO it is not before the Board and, so, must be referred to the RO for appropriate action. FINDINGS OF FACT 1. Following a failed VA trabeculectomy under the right scleral flap, the Veteran had an additional VA surgery in 1982 to attempt to preserve vision in his right eye when he had another VA trabeculectomy of the right eye in 1982, and VA treatment records in 1983 do not show blindness or light perception only in his right eye. 2. While a recently received private clinical record show that the Veteran had blindness of the right eye in 2001, his formal claim for SMC based on blindness of the right eye was received on December 12, 2005, and actual blindness or perception of only light was first shown on official examination in March 2006. 3. Prior to December 12, 2005, there was no pending formal claim, or informal claim for SMC, or a formal or informal claim for an increased rating which could have been construed as a claim for SMC. CONCLUSION OF LAW The criteria for effective date prior to December 12, 2005, for SMC based on blindness in the right eye with only light perception are not met. 38 U.S.C. § 1114(k), 5110(a), 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.102, 3.350(a), 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. VA must provide notice of (1) information and evidence, medical or lay, needed for claim substantiation, (2) which portion that VA will seek to provide; and (3) that which the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). This duty to notify was intended to be provided prior to an initial adjudication of a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). Here, the Veteran was provided a VCAA compliant notice by RO letter dated in February 2006, prior to the May 2006 rating decision which is appealed. He was notified of what was needed to substantiate the claim and he was notified of the evidence needed to substantiate a service-connection and the types of evidence the Veteran was expected to provide and that which VA would obtain on his behalf, e.g., private, VA or other Federal records. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. The Veteran's service treatment records (STRs) have been obtained and he has recently submitted his private treatment records. As the videoconference hearing the Veteran's service representative requested that it be assured that all of the Veteran's VA treatment records from Atlanta, Georgia (which was the only VA facility at which he had been treated) were on file. See page 5 of the transcript of that videoconference. As to this, his VA records of treatment at that facility through 1983 are on file. Neither the Veteran nor his representative has suggested that there are any other VA treatment records since 1983 or that he sought or received treatment at that facility after 1983. In fact, the February 2006 RO letter specifically informed the Veteran that if he had recently received VA treatment, he was to furnish the dates and places of such treatment and VA would obtain them. However, again, neither the Veteran nor his representative has suggested that the Veteran received any VA treatment after 1983. The Veteran testified in support of his claim at a December 2012 videoconference, and a transcript thereof is contained in Virtual VA. As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background Following the Veteran's original VA claim in May 1977, he did not appeal a June 1977 rating decision which granted service connection for glaucoma (which remains his only service-connected disorder) and assigned an initial 10 percent rating, all effective May 28, 1977. VA outpatient treatment (VAOPT) records of 1977 to 1979 reflect, in pertinent part, treatment for glaucoma of the Veteran's right eye. During VA hospitalization in July 1979 the Veteran had a trabeculectomy under the scleral flap of the right eye. The Veteran claimed an increased rating in July 1979, and on VA examination in October 1979 he had "count fingers" vision in the right eye. A December 1979 rating decision granted a temporary total rating, under 38 C.F.R. § 4.30, from July 9, 1979, until a 30 percent rating was assigned effective September 1, 1979. The Veteran appealed that rating decision. Additional VAOPT records of 1978 and 1979 do not show that the Veteran was blind in the right eye or had only light perception in that eye. After a July 1980 rating decision confirmed and continued the 1979 rating decision, a February 1981 Board decision denied an increased evaluation for glaucoma of the right eye, finding that the Veteran's visual acuity in the service-connected right eye was "counting fingers and best corrected visual acuity in the other nonservice-connected eye is 20/25." VAOPT records from November 1980 to October 1981 show that in September 1981 it was indicated that the prior right eye surgery had failed. Other records in this time frame show that his vision in the right eye was variously found to be 20/200, 20/300, and 20/400. The Veteran claimed an increased rating in September 1981 and he was notified in November 1981 that the claim was denied but he did not appeal that decision. During VA hospitalization in July 1982 the Veteran underwent another trabeculectomy of the right eye. On admission his vision was "count finger" in the right eye and he was discharged in good condition. VAOPT records of 1981 and 1982 show that in December 1982 he sustained trauma of the right eye and complained of a possible decreased vision. A March 1983 rating decision granted a temporary total rating, under 38 C.F.R. § 4.30, from July 16, 1982, until a schedular 30 percent rating was resumed effective September 1, 1982. The Veteran did not appeal that decision. VAOPT records from 1981 to 1983 show that in August 1983 the Veteran was evaluated for right eye glaucoma but there is no indication that he was blind in the right eye or had only light perception. The Veteran filed a claim in December 12, 2005, for an increased rating which was also construed by the RO as a claim for SMC for his right eye. Official ophthalmological examination in March 2006 found that the Veteran's best corrected as well as uncorrected distant visual acuity in the right eye was no light perception in that eye. At the December 2012 videoconference the Veteran testified that he had initially developed glaucoma while on military duty and was released from military duty in 1977 with the glaucoma. His vision in the right eye it had progressively worsened and "along about 1980, '82 timeframe" he had lost vision in his right eye. And, so he filed his original claim for service connection in 1982 [in actuality in 1977]. Page 4 of that transcript (T4). He currently received VA treatment for his eye in Atlanta. As to when he had developed blindness with no light perception in the right eye, this had occurred "around in the 80's timeframe" and this was documented by VA. T5. The Veteran testified that he had received all of his treatment at the Atlanta, Georgia, VA Medical Center since his discharge from active service, beginning in the early 1980s. T6. He also testified that in about 2000 or 2001 he had begun seeing a private physician, a Dr. C., whose medical practice was in Marietta, Georgia, for glaucoma. T6 and 7. He had sought out Dr. C. because the Veteran's prior surgery on the right eye had been to prevent him from losing any further vision in the right eye but he had nevertheless gone blind in the right eye and, so, he had wanted a second opinion and had found out that the glaucoma had "spread" to his left eye. The Veteran indicated that he was going to submit, at the hearing, the complete records of Dr. C. T7 and 8. These records of Dr. C. also contained a couple of opinion letters with respect to the Veteran's left eye. T8. The presiding VLJ noted that the current effective date for the Veteran's SMC had been set in December 2005, as of the date of receipt of his claim for SM, but that it was the Veteran's contention that VA had known that he was blind and without light perception in the right eye for a much longer period of time prior to receipt of the formal claim in December 2005. T8. When asked whether he had a specific date in mind as to when VA was aware of his right eye blindness, he replied that he had lost vision back around 1982 and, so, VA had known back in the early 1980s that he had no vision in the right eye and not even light perception in that eye. The service representative cited an opinion letter from Dr. C. addressing light perception in the Veteran's right eye and dated it all the way back to August 2001. T9. The presiding VLJ noted that the Statement of the Case (SOC) indicated that an RO decision in March 1983 had been made, following the Veteran's right eye surgery for glaucoma [a trabeculectomy] and following that surgery he had been given a temporary total rating of 100 percent but that loss of use of the right eye was not then shown. The Veteran reaffirmed his belief that in 1983 he was blind with light perception only in the right eye. T9. The additional evidence submitted by the Veteran, together with a waiver of initial RO consideration, includes an August 22, 2001, report of an evaluation of the Veteran for a pituitary tumor, diagnosed one month earlier. It was noted that he had a long history of severe glaucoma and a complete loss of vision in the right eye. He also had glaucoma in the left eye. On examination he had no light perception in the right eye. A March 2006 letter by Dr. C. stated that when the Veteran presented in August 2001 he had no light perception in the right eye. Additional private treatment records from 2001 to 2005 do not contain any history related by the Veteran of having had blindness in the right eye prior to his August 2001 evaluation. Law and Regulations Special monthly compensation under 38 U.S.C. § 1114(k) is payable for blindness of one eye having only light perception. 38 C.F.R. § 3.350(a). The effective date of an award of SMC, based on an original claim, is the day following separation from active service of the date entitlement arose, provided the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(o). Under 38 U.S.C.A. § 5110(b)(2) the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Tucker v. West, 11 Vet. App. 369, 372 (1998). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis The Veteran alleges that VA was aware that he was blind or unable to perceive anything more than light in his right eye prior to his December 2005 claim. More specifically, he alleges that he was blind or unable to perceive more than light as far back as 1980 or 1981. However, if he had been unable to perceive more than light he would not have needed the VA right eye surgery that he underwent in July 1982 when he had "count finger" in the right eye, which is more than mere perception of light. In fact, VA treatment records show that as late as December 1982 he complained of possible decreased vision in the right eye. Even later VA treatment records in 1983 contain nothing which indicates that he was blind in the right eye or that vision in that eye was so severe that he was limited to light perception only. Also, a March 1983 rating decision denied a rating in excess of 30 percent for impaired visual acuity in the right eye. There is essentially no clinical evidence from 1983 until the private clinical record of August 2001, which was not received until after the 2012 videoconference, pertaining to the Veteran's visual acuity in his right eye. The mere reference in the August 2001 private clinical record that the Veteran had a long history of complete loss of vision in the right eye cannot serve to establish an earlier effective date because it was not received, and made part of the record, until 2012. The effective date for SMC is either the date of receipt of the claim, in this case December 12, 2005, or the date entitlement arose. The date entitlement arose is not, as the Veteran apparently assumes, the date the disability arose (a degree of visual impairment showing only light perception in the right eye), but the date that such evidence was on file. VA treatment records are constructively in possession of VA adjudicator's when they are created. See Bell v. Derwinski, 2 Vet. App. 611, (1992); cf. Damrel v. Brown, 6 Vet. App. 242, 246 (1992) (The Bell constructive-notice doctrine is not retroactive to VA adjudications that occurred before Bell was issued (in July 21, 1992)). However, private clinical records are not constructively in VA's possession. Thus, even if the private clinical records established that the Veteran was blind or could only perceive light in his right eye, VA could not have construed such records as being a claim for SMC unless the Veteran had submitted them to VA. This he did not do until 2012, after the current effective date of 2005. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) and Hensley v. Brown, 5 Vet. App. 155 (1993). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). As to the Veteran's statements and testimony, he is certainly competent to report what he perceived to be the extent of his visual impairment, and the Board does not doubt the sincerity of the Veteran in this regard; however, he is not competent to render a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). While lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in a proper case to establish a claim, the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This includes weighing the absence of contemporary medical evidence against lay statements and testimony. Whether lay evidence is competent and sufficient, as well as credible, in a particular case is a factual issue. As stated above, the evidence from the Veteran that he was blind in the right eye or had only light perception dating back to a time from 1980 to 1982 is not credible in light of the clinical evidence which conclusively shows otherwise. After a review of the record, the Board finds that none of the VA clinical records on file may be construed as a formal or an informal claim for SMC. Thus, there was no pending and unadjudicated claim for SMC prior to receipt of the December 2005 claim for SMC. Rather, the effective date in this case is the latter of either the December 2005 claim or the March 2006 official examination documenting the Veteran's impairment of vision of such extent as to meet the requirements for SMC. To the extent that he has been assigned the earlier of these two effective dates, there is no prejudice to the Veteran. This being the case, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An effective date prior to December 12, 2005, for SMC based on blindness in the right eye with only light perception is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs