Citation Nr: 1330010 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-06 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an effective date prior to March 17, 2009, for the grant of service connection for glaucoma. 2. Entitlement to an effective date prior to June 14, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) with depressive disorder. 3. Entitlement to an initial rating in excess of 10 percent for glaucoma. 4. Entitlement to an increased (compensable) rating for cataracts. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from November 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Buffalo, New York, which granted service connection for glaucoma and assigned a 10 percent disability rating, effective from March 17, 2009. In that same rating action, the RO denied the Veteran's claim for an increased (compensable) rating for cataracts. In December 2009, the Veteran filed a notice of disagreement (NOD) in which he disagreed with the disability rating assigned to his service-connected glaucoma. He also disagreed with the RO's denial of his claim for an increased (compensable) rating for cataracts. In January 2010, the Veteran filed another NOD in which he disagreed with the effective date for the grant of service connection glaucoma. In February 2010, the RO issued a statement of the case (SOC) and the Veteran filed a timely substantive appeal (VA Form 9) later that month. According to the Veteran's Virtual VA folder, in a July 2012 rating action, the RO granted service connection for PTSD with depressive disorder and assigned a 100 percent disability rating, effective from July 14, 2011. In January 2013, the Veteran filed an NOD in which he disagreed with the effective date for the grant of service connection for PTSD. A statement of the case has not been issued and under Manlincon v. West, 12 Vet. App. 119 (1998), the issue of entitlement to an effective date earlier than June 14, 2011, for the grant of service connection for PTSD with depressive disorder must be remanded. The issues of entitlement to an effective date prior to June 14, 2011, for the grant of service connection for PTSD with depressive disorder, entitlement to an initial rating in excess of 10 percent for glaucoma, and entitlement to an increased (compensable) rating for cataracts, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's original claim for service connection for glaucoma was received on March 17, 2009, and no earlier claims for service connection for glaucoma were filed. CONCLUSION OF LAW The criteria for an effective date earlier than to March 17, 2009 for the grant of service connection for glaucoma have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in March 2009. This letter advised the Veteran of all required elements for service connection. The letter further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess, 19 Vet. App. at 473; aff'd sub. nom. Hartman v. Nicholson, 483 F3d 1311 (2007). If a claimant wishes to obtain an effective date earlier than that assigned in an RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296. 299 (2006). In January 2010, the Veteran filed a timely NOD to the June 2009 rating decision that granted service connection for glaucoma, and that decision has not become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2013). It is therefore proper for the Board to adjudicate his claim for an earlier effective date. Id. Although the Veteran has not been specifically notified of the requirements necessary to establish an earlier effective date for the grant of service connection for glaucoma, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation or earlier effective date following initial grants of service connection for a disability in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). As stated above, the appropriate notice has been given in this case. VA has also complied with its duty to assist the Veteran in gathering evidence to substantiate his claim. All service treatment records and VA Medical Center (VAMC) treatment records are associated with the claims folder. Throughout this appeal, the Veteran has argued that entitlement to an effective date prior to March 17, 2009, for the grant of service connection for glaucoma is warranted based on the evidence already of record. He has not identified the existence of any additional evidence or argued that there are any developmental deficiencies in the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Merits of the Claim The Veteran notes that he had problems with his eyes both during and after service. Thus, he maintains that the effective date for service connection for glaucoma should be November 11, 1970, which was the day after his discharge. In the alternative, he contends that because his glaucoma is secondary to his service-connected diabetes mellitus, the effective date for service connection for glaucoma should be the same effective date for service connection for diabetes mellitus, which is September 5, 1986. Having carefully considered the claim in light of the record and the applicable law, the Board must deny the appeal. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2013). Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase 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 (2013). If a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The provisions of 38 U.S.C.A. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the veteran. Id. Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought. An "application" is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The Veteran's service treatment records are negative for any complaints or findings of glaucoma. The records show that in July 1968, the Veteran was diagnosed with a pterygium of the right eye. In an April 1980 rating action, the RO granted service connection for a pterygium of the right eye. The RO assigned a noncompensable disability rating, effective from January 1980. VAMC outpatient treatment records show that in March 1997, the Veteran was treated at the eye clinic. The assessment was glaucoma suspect. On May 1, 1997, the RO received a VA Form 21-4138, Statement in Support of Claim. In the statement, the Veteran requested that his service- connected pterygium of the right eye be reevaluated for a higher rating. He noted that he had been experiencing the following symptoms: (1) high intraocular pressure, (2) damaged optic disk, (3) hardening of the eyeball, (4) defect in his field of vision, and (5) running eyes. In September 1997, the Veteran underwent a VA eye examination. The examiner noted that the Veteran was being followed as a glaucoma suspect. In regard to an impression, the examiner stated that the Veteran had physiologic cupping in both eyes but would be worked up as a glaucoma suspect with visual field examinations. According to the examiner, the Veteran's pterygium was inactive. In a March 1998 rating action, the RO denied the Veteran's claim for an increased (compensable) rating for his service-connected pterygium of the right eye. The RO provided the Veteran with his appellate rights; he did not appeal the decision. In an April 1998 rating action, the RO continued to deny the Veteran's claim for an increased (compensable) rating for his pterygium of the right eye. The RO provided the Veteran with his appellate rights; he did not appeal the decision. In a January 2002 rating action, the RO granted service connection for diabetes mellitus, as secondary to in-service Agent Orange exposure, pursuant to Nehmer v. U.S. Department of Veterans Affairs, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989). The RO assigned a 20 percent disability rating, effective from September 1, 2000. In a June 2003 rating action, the RO granted an earlier effective date of September 5, 1986, for the grant of service connection for diabetes mellitus. On March 17, 2009, the RO received the Veteran's original claim of entitlement to service connection for glaucoma. The Veteran stated that on March 2, 2009, he had been informed that he had glaucoma in both eyes. VAMC outpatient treatment records show that in October 2008, the Veteran underwent an eye evaluation. It was noted that glaucoma was suspected. On March 2, 2009, it was once again indicated that glaucoma was suspected. In April 2009, the Veteran was diagnosed with primary open angle glaucoma. In April 2009, the Veteran underwent a VA eye examination. The pertinent diagnosis was glaucoma. The examiner stated that it was a known fact that primary open angle glaucoma was more common in patients that had diabetes. Thus, he opined that it was at least as likely as not that the Veteran's glaucoma was due to his service-connected diabetes mellitus. In a June 2009 rating action, the RO granted service connection for glaucoma and assigned a 10 percent disability rating, effective from March 17, 2009, the date it received the Veteran's initial claim for service connection for glaucoma. The evidence of record clearly shows that the Veteran first filed a claim for glaucoma on March 17, 2009. The Board has reviewed the claims file in an attempt to find a basis for the award of an earlier effective date. Prior to March 17, 2009, there is no document of record that could be construed as a formal or informal claim for service connection for glaucoma in accordance with the provisions of law as to the recognition of informal claims. In May 1997, the Veteran filed a claim for an increased (compensable) rating for his service-connected pterygium. At that time, VAMC outpatient treatment records showed that he was being followed for suspected glaucoma. However, although glaucoma was suspected, an actual confirmed diagnosis of glaucoma was not reported. When the Veteran filed his claim for an increased rating for his pterygium, he noted that he had high intraocular pressure. The Veteran's representative, Disabled American Veterans (DAV), submitted a brief from the Glaucoma Foundation noting that high eye pressure was a significant risk factor of glaucoma. While glaucoma was suspected, a confirmed diagnosis of glaucoma was not indicated. Regardless, at that time, the Veteran did not specifically raise a claim for service connection for glaucoma. He had only raised the claim for an increased rating for his pterygium. As previously stated, the mere presence of medical evidence in the record does not establish intent on the part of the veteran to seek service connection for the benefit in question. Brannon, 12 Vet. App. at 32. As Brannon makes clear, VA is not required to be clairvoyant about the benefits the veteran seeks. Id. Thus, the submission of the VAMC outpatient treatment records cannot be interpreted as an informal claim for service connection for glaucoma. For claims for disability compensation based on direct service connection, the effective date to be assigned is the day following separation from active service or the date entitlement arose, if a claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Thus, in regard to the Veteran's contention that the effective date for service connection for glaucoma should be November 11, 1970, which is the day after his discharge, the Board notes that there is no evidence of record showing that the Veteran filed a claim for service connection for glaucoma within one year after his separation from service, which was on November 10, 1970. In addition, there is no evidence of record showing that the Veteran was even diagnosed with glaucoma within one year after his discharge. Rather, the first evidence of record of an actual diagnosis of glaucoma is in April 2009. The Board has considered the Veteran's contention that because his glaucoma is secondary to his service-connected diabetes mellitus, the effective date for service connection for glaucoma should be the same effective date for service connection for diabetes mellitus, which is September 5, 1986. However, the Veteran was not diagnosed with glaucoma until April 2009. In addition, the fact remains that the effective date of the award of an evaluation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. The date of receipt of the claim for service connection for glaucoma was March 17, 2009, and no document in the record evinces the Veteran's intent to seek service connection for glaucoma earlier than March 17, 2009. There is no document of record that constitutes a formal or informal claim for service connection for glaucoma prior to March 17, 2009. 38 U.S.C.A. § 5107(b). The appeal is denied. ORDER Entitlement to an effective date prior to March 17, 2009, for the grant of service connection for glaucoma is denied. REMAND The case is REMANDED for the following action: 1. In response to the Veteran's NOD, the RO should issue an SOC to the Veteran that addresses the issue of entitlement to an effective date prior to June 14, 2011, for the grant of service connection for PTSD with depressive disorder. The RO should also advise the Veteran that upon receipt of this SOC, he still needs to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of this claim to the Board. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should the claim be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302, etc. (2013). 2. The RO must schedule the Veteran for a VA eye examination to determine the current severity of his service-connected glaucoma and service-connected cataracts. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, will be reviewed by the examiner in conjunction with the examination, and the examiner will acknowledge this review in any report generated as a result of this remand. b. All indicated studies must be conducted. Visual fields and visual acuities should be set out. Specifically, uncorrected and corrected central visual acuity for distance and near vision of both of the Veteran's eyes must be provided. Measurement of the visual field should be made part of the examination report. 3. Thereafter, the RO must conduct a review of all evidence received since the February 2010 SOC. Specifically, the RO must review the Veteran's Virtual VA folder which contains VAMC outpatient treatment records, dated from February 2011 to June 2012, which show intermittent treatment for the Veteran's service-connected glaucoma and cataracts. This evidence was not yet available when the February 2010 SOC was issued and must be reviewed. 38 C.F.R. §§ 19.31, 19.37. After undertaking any additional development which may be necessary, the RO must review and re- adjudicate the Veteran's claims in light of the evidence added to the record since the February 2010 SOC was issued. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative a supplemental statement of the case (SSOC) and an appropriate period of time must be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs