Citation Nr: 1316276 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 12-04 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for macular degeneration and cataracts of the right eye. 2. Entitlement to an effective date earlier than July 2, 2008, for the grant of entitlement to service connection for blindness of the left eye, pseudophakic bullous keratoplathy, no light perception, legal blindness, with special monthly compensation (SMC). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The September 2008 rating decision declined reopening the Veteran's claim for entitlement to service connection for macular degeneration and cataracts of the right eye finding no new and material evidence had been submitted. A subsequent August 2009 Supplemental Statement of the Case (SSOC), however, effectively reopened the claim and denied it on the merits. Regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92; Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). Thus, the issue on appeal has been characterized as shown above. With respect to the Veteran's right eye claim, the claims file includes additional evidence, namely VA medical records and a May 2012 VA examination report, associated with the file since the time of the last SSOC issued by the RO on this issue in August 2009. While the new evidence includes diagnoses of myopia, macular degeneration, and cataract of the right eye with the opinion that the cataract was age-related and not associated with the Veteran's service-connected left eye disability, such evidence is essentially duplicative of other post-service diagnoses and opinions at the time of the August 2009 SSOC. The new evidence fails to substantiate the pertinent issue of whether the Veteran has a current right eye disability that was caused or aggravated by some incident of military service or his service-connected left eye disability. See 38 C.F.R. § 20.1304(c) (2012). For this reason, the absence of a waiver as to such evidence does not prejudice the Veteran in this case, and the Board will proceed to adjudicate this appeal. The Board notes the Veteran requested a videoconference hearing in his February 2012 substantive appeal form for the issue of an earlier effective date. A videoconference hearing was scheduled for January 2013, but the Veteran postponed the hearing. In a May 2013 statement made through his representative, the Veteran withdrew the hearing request and requested that the matter be adjudicated based on the evidence of record. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An August 2004 rating decision denied the Veteran's claim for entitlement to service connection for macular degeneration and cataracts, right eye, on the basis that the service treatment records showed no evidence of complaints or treatment for an impairment of vision or any trauma to the eyes and there was no evidence of a causal medical relationship between current right eye problems and military service; the Veteran did not timely appeal or otherwise express disagreement with this rating decision. 2. Evidence received since the August 2004 rating decision is either cumulative or redundant and does not raise a reasonable possibility of substantiating the right eye claim. 3. The August 2004 rating decision also denied entitlement to service connection for blindness, left eye, and the Veteran did not timely appeal or otherwise express disagreement with this rating decision. 4. On July 2, 2008, the Veteran filed a claim to reopen that was specifically claimed as "Right Eye lost [sic] of vision" and which the RO interpreted as encompassing a claim for left eye service connection. 5. At the time of receipt of the July 2, 2008 claim to reopen, there were no pending or otherwise unadjudicated claims for entitlement to service connection for a left eye disability. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied the claim for entitlement to service connection for macular degeneration and cataracts, right eye, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the August 2004 rating decision is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for an effective date earlier than July 2, 2008, for the grant of entitlement to service connection for blindness of the left eye, pseudophakic bullous keratoplathy, no light perception, legal blindness, with SMC, have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. With respect to the right eye claim, VCAA letters dated in August 2008 and July 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. These letters also described how disability ratings and effective dates were assigned and the July 2011 letter discussed how to establish entitlement to service connection on a secondary basis. For purposes of evaluating the Veteran's request to reopen his claim of entitlement to service connection, the Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The August 2008 letter informed the Veteran that his claim had been previously denied, and that new and material evidence was needed to substantiate the claim to reopen and described what would constitute such new and material evidence. The letter also specifically explained the basis of the prior denial on the merits, and directed the Veteran to submit any new and material evidence showing that his right eye disabilities were related to service. This letter was fully compliant with the requirements set forth in Kent v. Nicholson. Id. Moreover, the Board notes that, for claims for an earlier effective date, where, as here, service connection for a left eye disability has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claims that have referenced the applicable law and regulations necessary to reopen and grant a claim for entitlement to service connection and for an earlier effective date. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. As to the Veteran's petition to reopen his claim for entitlement to service connection for a right eye disability, the record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. In reaching that conclusion, the Board notes that until a claim is reopened VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2012). As to the earlier effective date claim, the Board finds that the duty to assist has been fulfilled. The outcome of this appeal turns on a determination as to the date a claim of service connection was filed as it relates to receipt of new and material evidence. The Veteran's various applications for benefits are of record, as are all the pertinent procedural documents. There is no suggestion that additional evidence, relevant to these matters, exists and can be procured. No further development action is required. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). New and Material Evidence The Veteran claims that he has a right eye disability as a result of his military service. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2012). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2012). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). As noted above, an August 2004 rating decision denied entitlement to service connection for macular degeneration and cataracts, right eye, finding that the service treatment records showed no evidence of complaints or treatment for an impairment of vision or any trauma to the eyes and there was no evidence of a causal medical relationship between current right eye problems and military service. There is no correspondence of record expressing disagreement with the denial of service connection during the appellate time period. Therefore, the August 2004 rating decision is final. At the time of the August 2004 rating decision, the record included service treatment records, private treatment records, and the Veteran's statement that his claim was for an "eye condition" for which he had been treated since 1980. The service treatment records showed no complaints, treatment, or diagnosis of a right eye disability. In support of his claim, the Veteran submitted a July 2004 letter from his treating ophthalmologist. The physician noted treating the Veteran for many years and that he had a history of a slowly developing cataract in the right eye. On the Veteran's last treatment visit his best-corrected visual acuity was 20/40 in the right eye. In addition, he had nuclear sclerotic and early posterior subcapsular cataract in the right eye, as well as early macular degeneration in the same eye. Potentially relevant evidence received since the August 2004 rating decision includes statements from the Veteran that he has loss of vision in his right eye due to service. A September 2008 letter from the same treating ophthalmologist stated that the Veteran was being treated for nuclear sclerotic cataracts and early dry age-related macular degeneration. On his last visit, the Veteran's best corrected visual acuity was 20/60 in the right eye. The Veteran also had a nuclear sclerotic cataract and dry age-related macular degeneration in the right eye. An undated letter from another physician stated that he had treated the Veteran in 1945 after discharge from service, but recalled only problems with sight deficiency in the left eye and did not mention any right eye problems. The Veteran also was afforded a VA examination in August 2009 for his eyes. The Veteran reported decreased central vision from the 1940s, with onset during service. He claimed to have memorized the eye chart in order to pass because he wanted to be discharged from service. The Veteran reported an injury to the left eye in service, but did not discuss any injury to the right eye. On testing, right eye visual acuity was 20/80. The examiner's diagnosis was myopia, age-related macular degeneration, and age-related cataract of the right eye. The Veteran's decreased visual acuity in the right eye was consistent with cataract and dry age-related macular degeneration. Except as provided in Section 5108 of this title, when the RO disallows a claim, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105 (West 2002). Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective August 29, 2001. The instant claim to reopen was filed after that date and the revised definition applies. Under the revised definition, "new evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). As noted above, the Veteran's claim for entitlement to service connection for macular degeneration and cataracts, right eye, was denied in an August 2004 rating decision. At that time, the RO found that the service treatment records showed no evidence of complaints or treatment for an impairment of vision or any trauma to the eyes and there was no evidence of a causal medical relationship between current right eye problems and military service. The crucial inquiry, therefore, is whether the Veteran has submitted new and material evidence showing that his current right eye disabilities were incurred in or otherwise related to his military service. The Board finds the evidence received since the August 2004 rating decision does not. In that regard, the Board notes that the Veteran's claim that his right eye disabilities were related to his military service already were of record at the time of the August 2004 rating decision. Thus, his current contentions regarding the incurrence of a right eye disability in service are essentially cumulative of evidence already of record, and do not raise a reasonable possibility of substantiating the claim. Moreover, at the time of the August 2004 rating decision, the Veteran had been diagnosed with macular degeneration, cataracts, and slight myopia. These are the precise disabilities noted in the medical evidence since the August 2004. Of considerable significance, the August 2009 VA examination report and September 2008 private treatment record both explicitly found his current right eye disabilities to be related to his age and did not attribute them to his military service or his service-connected left eye disability. Thus, the medical evidence of record since the time of the August 2004 rating decision, far from helping to establish an element necessary to establish entitlement to service connection, serves only to establish that the Veteran's current right eye disabilities are due to his age (cataract and macular degeneration) or his other right eye disabilities (myopia) and in no way suggest any relationship between these disabilities and the Veteran's military service or service-connected left eye disability. As such, the new medical evidence of record does not raise a reasonable possibility of substantiating the claim. In short, the Veteran's lay statements and the medical evidence of record fail to relate to an unestablished fact necessary to substantiate the claim. Indeed, the Veteran's contentions regarding the incurrence of a right eye disability in service were of record in August 2004 and the new medical evidence of record in no way relates any current right eye disability to the Veteran's military service or service-connected disability. Accordingly, the additional evidence received since August 2004 is not new and material and the claim may not be reopened. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Earlier Effective Date In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b). The Veteran originally filed a claim for entitlement to service connection for a left eye disability in May 2004. The claim was denied in an August 2004 rating decision. The Veteran was properly notified of the decision and did not appeal. Rather, on July 2, 2008, the Veteran filed a claim to reopen that was specifically claimed as "Right Eye lost [sic] of vision" and which the RO interpreted as encompassing a claim for left eye service connection. Entitlement to service connection for blindness of the left eye, pseudophakic bullous keratoplathy, no light perception, legal blindness, with SMC, was ultimately granted in an August 2009 rating decision, assigning an effective date of July 2, 2008, the date of his claim to reopen. The Veteran contends that he filed a claim for service connection in 1975 or 1976 and that his effective date should be from that time. He asserts that his claim was denied at the time of his initial appeal because his eyesight was noted to be 20/20 on separation from service, but the denial was verbal in nature and not reduced to writing. The Veteran does not contend that he ever expressed written or verbal disagreement to the RO over any verbal or other denial of the claim in 1975 or 1976. Even were the Board to accept the Veteran's contention that he filed a claim in 1975 or 1976, irrespective of whether it was adjudicated at the time, the claim subsequently was adjudicated (and denied) as an original claim for entitlement to service connection in August 2004. Again, the August 2004 rating decision denying the claim was not appealed and, therefore, is final. 38 U.S.C.A. § 7105. Thus, irrespective of whether there was a pending claim or final denial from 1975 or 1976, the Veteran does not dispute that an original claim for entitlement to service connection for a left eye disability was finally adjudicated in August 2004. This August 2004 rating decision would constitute a final adjudication of any pending claim for service connection from 1975 or 1976. Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997). There are only two exceptions to the rule of finality of VA decisions, i.e., challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C.A. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C.A. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). In addition, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the RO's failure to address an implied claim is properly challenged through a motion of CUE. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (2005). If the grant is based on a claim which has been finally denied and subsequently reopened by the submission of new and material evidence, as is the case here, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). The Veteran's new claim for a left eye disability was received July 2, 2008, which is the current effective date assigned. The Veteran does not dispute that the August 2004 rating decision is final. Rather, he argues the previous adjudications improperly denied his claims, as he had significantly decreased left eye visual acuity with onset during his military service. It is noteworthy, that the Veteran's arguments do not amount to an allegation of CUE. In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity. Id. The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. Here, it is clear the Veteran never with any specificity alleged CUE with the past rating decision. Rather, the Veteran argues that his left eye visual acuity, particularly his central vision, was significantly decreased from the time of separation from service and that the effective date of entitlement to service connection should be from 1975 or 1976 when he asserts he filed his initial claim. Again, the Veteran filed for a bilateral eye disability in May 2004. At that time, the Veteran stated that he had an eye condition for which he had been treated since the 1980s. In addition, a July 2004 letter from a treating ophthalmologist indicated that the Veteran had lost vision in his left eye in the 1950s due to presumed optic neuritis. In addition, the Veteran was noted to have been blind in the left eye for many years. The Veteran's service treatment records did not include any complaints, treatment, or diagnosis of left eye problems or disability. The RO denied the claim in its August 2004 rating decision. The rating decision discussed the absence of in-service complaints or treatment for impairment of vision or trauma to the eye and that entrance and exit examinations showed 20/20 vision bilaterally. The rating decision noted that the Veteran had a current diagnosis of left eye blindness, but that the "evidence fails to establish a causal, medical relationship to your current disability and an injury or disease process incurred coincident with military service." In sum, the Veteran is not alleging the correct facts available at the time of the August 2004 rating decision were not provided to the adjudicators or that some other specific "error" was made. Rather, the Veteran is merely disagreeing with the RO's analysis of the facts and weighing of the evidence. The Veteran's arguments simply do not amount to alleging CUE as to disturb the finality of any past unappealed rating decision. As noted, the Veteran filed a claim to reopen the issue of entitlement to service connection for blindness of the left eye, pseudophakic bullous keratoplathy, no light perception, legal blindness, with SMC, on July 2, 2008. The August 2009 grant was based on the submission of new and material evidence, specifically an August 2009 VA examination. Therefore, the effective date is limited to the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). There simply is no legal basis to award an effective date prior to July 2, 2008. The Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. Thus, the Board concludes that an earlier effective date is not warranted in this case under VA regulations governing effective dates for awards based on an original claim for service connection. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (q)(1)(i) and (ii), and (r). ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for macular degeneration and cataracts of the right eye has not been received and, therefore, the claim is denied. Entitlement to an effective date earlier than July 2, 2008, for the grant of entitlement to service connection for blindness of the left eye, pseudophakic bullous keratoplathy, no light perception, legal blindness, with SMC, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs