Citation Nr: 1322780 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 13-09 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than February 4, 1981, for the grant of service connection for a left eye injury, with traumatic cataract, light perception only, 20/40 other eye. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active service from June 1953 to December 1957. This appeal comes before the Board of Veterans' Appeals (Board) from July 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In March 2013, the Veteran requested a hearing before a Veterans Law Judge (VLJ) by live videoconference. However, in an April 2013 letter, the Veteran withdrew his request for a hearing. The Veteran has not requested another hearing and therefore, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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. On February 4, 1981, the Veteran filed his original claim for service connection for a left eye injury. 2. In a December 1982 rating decision, the RO granted service connection for a left eye injury, effective April 18, 1981. 3. In a July 2010 rating decision, the RO changed the effective date of the grant of service connection for a left eye injury to match the date of the original claim on February 4, 1981. CONCLUSION OF LAW The criteria for an effective date earlier than February 4, 1981 for the grant of service connection for a left eye injury, with traumatic cataract, light perception only, 20/40 other eye, have not been met. 38 U.S.C.A. §§ 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.12(e), 3.155, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for a left eye injury. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The Veteran's service treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not provided any information to VA concerning available treatment records that were not obtained. While the Veteran has not been afforded a recent VA examination with regard to his claimed left eye injury, a medical examination or opinion would not assist in making a decision on the claim for an earlier effective date. Thus, VA was not obligated to obtain one. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim for service connection for a back disability at this time. II. Earlier Effective Date The Veteran seeks an effective date prior to February 4, 1981 for the grant of service connection for a left eye injury. Specifically, the Veteran states that he should be service connected for his left eye injury from his date of separation from service in December 1957. In a statement date-stamped as received at the RO on February 4, 1981, the Veteran filed a claim for entitlement to service connection for a left eye injury. He reported that his left eye injury was treated during service in 1956. In a May 1981 administrative decision, the Phoenix RO found that the Veteran's discharge from service in December 1957 was under conditions other than honorable. Therefore, it was held that the Veteran was not entitled to VA benefits based upon his service from June 1953 to December 1957. In an Ocotber 1981 rating decision, the RO service connected the Veteran's left eye injury for the purpose of VA medical treatment only and no effective date or disability rating was assigned. On April 18, 1981, the Veteran applied to have his dishonorable discharge upgraded. A September 1981 letter documents that the Air Force Board for the Correction of Military Records changed the Veteran's character of discharge to honorable. A December 1982 rating decision noted the Veteran's upgrade in discharge character to honorable and awarded the Veteran a noncompensable disability rating for his left eye injury from April 18, 1981. The RO determined that the correct effective date was the date of the Veteran's application for upgrading his discharge. In October 1983, the Veteran's disability rating for his left eye injury was increased to 30 percent disabling, effective April 18, 1981. A timely appeal was not filed by the Veteran and the rating decision became final. See 38 C.F.R. § 20.302, 20.1103 (2012). In June 2009, the Veteran reopened his claim for an earlier effective date for service connection for a left eye injury. In a July 2010 rating decision, the RO found that a clear and unmistakable error was made in the October 1983 rating decision due to a failure to assign the correct effective date of February 4, 1981 for the 30 percent evaluation of the Veteran's left eye injury. See 38 U.S.C.A. § 7111; 38 C.F.R. § 20.1403 (2012). The RO held that as the Veteran's original application for disability compensation was received on February 4, 1981, service connection was established from that date. A September 2011 rating decision denied an effective date earlier than February 4, 1981 for the Veteran's left eye injury. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Separation from service means separation under conditions other than dishonorable, from continuous active service, which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(2)(i). As discussed above, the Veteran's character of discharge was changed to honorable in September 1981 by the Air Force Board for the Correction of Military Records. Pursuant to 38 C.F.R. § 3.12(e), this upgrade action set aside any prior bar to VA benefits. While the Veteran claims he is entitled to service connection for his left eye injury from his date of discharge, an effective date earlier than February 4, 1981, is not warranted. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400; see Veteran's Claim to Reopen, June 2009. Prior to February 4, 1981, there is no document of record that may reasonably be construed as a formal or informal claim for service connection for a left eye injury. See 38 C.F.R. §§ 3.151(a), 3.155(a). The Veteran claims that due to the other than honorable character of his discharge, he was effectively barred from filing a claim for benefits prior to February 4, 1981. See Veteran's Notice of Disagreement, November 2011. However, this argument lacks merit as the Veteran applied for service connection for a left eye injury in February 1981, seven months before his discharge was upgraded in September 1981. The earliest possible effective date for the award of service connection for a left eye injury is February 4, 1981, the date the Veteran's initial claim for service connection was filed. See 38 C.F.R. § 3.400. Thus, the Board must find that the preponderance of evidence is against the claim; the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107. ORDER Entitlement to an effective date earlier than February 4, 1981 for service connection for a left eye injury, with traumatic cataract, light perception only, 20/40 other eye is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs