Citation Nr: 1330089 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 08-07 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 40 percent for absence, left eye, with a history of uveitis (left eye disability), to include the propriety of a reduction from 60 percent to 40 percent effective May 1, 2009. 2. Entitlement to an effective date earlier than October 16, 2006, for the grant of a 60 percent evaluation for service-connected left eye disability. 3. Entitlement to special month compensation (SMC) based on aid and attendance or housebound status. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to January 1946. He died in March 2010. The appellant is the Veteran's son. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Waco, Texas. In April 2007, the RO increased the evaluation of the Veteran's service-connected left eye disability to 60 percent disabling, effective October 16, 2006. The RO also denied entitlement to special monthly compensation based on aid and attendance/housebound status. The Veteran disagreed with the effective date of the 60 percent evaluation and the denial of special monthly compensation in a statement dated in June 2007 and the RO issued a statement of the case dated in February 2008. The Veteran filed a substantive appeal in March 2008. It is further noted that the Veteran also disagreed with the effective date of the initial grant of service connection. However, no appeal was filed in response to the September 2004 rating decision initially awarding service connection. In this regard, the Court has held that a claimant is precluded from making a "freestanding" earlier effective date claim that could be raised at any time after an RO decision became final. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed. In cases where this is not done, only a finding of clear and unmistakable error (CUE) could enable an earlier effective date. Given this, the statements of record are construed as a claim of CUE with respect to the November 1979 rating decision denying service connection for a left eye disability. This issue has not yet been adjudicated by the RO and is referred back for appropriate action. In August 2008, the RO proposed to reduce the evaluation for the Veteran left eye disability from 60 to 40 percent disabling based on clear and unmistakable error in the April 2007 rating decision. Notice of this proposed action was sent to the Veteran in an October 2008 letter. In January 2009, the RO effectuated this proposal and the evaluation of left eye disability was reduced to 40 percent disabling effective May 1, 2009. The Veteran filed a notice of disagreement with this action in May 2009 and the RO issued a statement of the case in January 2010. A substantive appeal was filed in February 2010 and the RO issued a supplemental statement of the case in March 2010. The Veteran passed away in March 2010 and in February 2011 his son requested to be substituted as the claimant for the purposes of processing the claim. The requested was granted by the RO in a memorandum dated in October 2011. In this regard, the Board notes that the statute regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). The amended statute provides that if a claimant dies while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). Accordingly, as the appellant has been substituted as the claimant in this case, the Veteran's appeals are continued. 38 U.S.C.A. § 5121A. In May 2013, the appellant testified at a hearing before the undersigned Veterans Law Judge at the local Regional Office. A transcript of these proceedings has been associated with the virtual claims file. The increased rating claim remains in controversy because the rating remains less than the maximum available benefit awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In August 2013, the appellant submitted a statement to the Board and included a copy of an earlier statement of the case that is already part of the record. The statement itself contains no substantive evidence and thus does not require remand for consideration by the RO in the first instance. As alluded to above, in addition to the physical claims file, there is also a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the paper claims file and will proceed with review of claims based upon all relevant evidence. FINDINGS OF FACT 1. For the entire increased rating period on appeal, the Veteran's visual acuity readings, while demonstrating anatomical loss of the left eye, do not demonstrate corrected vision in the other (right) eye to 20/70 or 20/50. 2. After proper procedures were undertaken, the RO issued a final rating action in January 2009, reducing the 60 percent schedular disability rating for left eye disability to 40 percent based on a finding of clear and unmistakable error (CUE) in the April 2007 rating decision; the finding of CUE was valid in that the statutory or regulatory provisions extant at that time of the April 2007 rating decision were incorrectly applied to the medical facts that existed at the time of the prior adjudication, and the error was undebatable and manifestly changed the outcome. 3. The Veteran did not manifest actual symptomatology corresponding to a 60 percent rating for left eye disability prior to October 16, 2006. 4. The medical and other evidence of record does not reveal that the Veteran's service-connected left eye disability rendered him permanently bedridden or so helpless that he was unable to perform self-care tasks or protect himself from the hazards incident to his daily environment without care or assistance of another person on a regular basis, or caused him to be permanently housebound; nor does the evidence indicate a visual acuity of 5/200 or less in both eyes. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for service-connected left eye disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 4.25, 4.75, 4.79, 4.80, 4.84a, Diagnostic Code 6065 (in effect prior to December 10, 2008 & 2012). 2. The reduction in disability rating for service-connected left eye disability from 60 to 40 percent, effective May 1, 2009, was proper in light of the clear and unmistakable error in the April 2007 rating decision, and the appropriate procedural steps were followed in implementing said reduction. 38 U.S.C.A. § 1155, 5103, 5103A, 5107, 5109A, 5112 (West 2002 & Supp. 2012); 38 C.F.R. § 3.105 (2012). 3. The criteria have not been met for an effective dated earlier than October 16, 2006 for the award of a 60 percent disability rating for service-connected left eye disability. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(b), 5110(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.400, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 6065 (in effect prior to December 10, 2008 & 2012). 4. The criteria for SMC by reason of the need for regular aid and attendance of another person have not been met. 38 U.S.C.A. § 1114, 1502, 1521, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159, 3.350, 3.352 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). As noted below, the Board finds that a reduction in disability rating for left eye disability was proper. As such, VA's duties to notify and assist are not applicable where a prior, final decision is subject to CUE reversal. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004). Regarding the remaining claims, the Veteran was sent letters dated in March and December 2006 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, statements in support of the claim are of record, including testimony provided at a May 2013 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased rating for left eye disability, including the propriety of the reduction from 60 to 40 percent disabling, effective May 1, 2009. A. Increased rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). During the course of this appeal, VA revised the criteria for rating eye disabilities, effective December 10, 2008. 73 Fed. Reg. 66,543 (2008) (codified at 38 C.F.R. § 4.75-4.79). The new regulations are effective only as to claims filed on or after December 10, 2008. Because the Veteran's claim was filed prior to that date (December 2005), the regulations in effect before December 2008 revision will apply. The Veteran's service-connected left eye disability has been evaluated under 6080-6065. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. From October 16, 2006 to May 1, 2009, a 60 percent evaluation is in effect. From May 1, 2009, as a result of a reduction, a 40 percent rating is in effect. Impairment of visual acuity is rated under Table V and Diagnostic Codes 6061-6079, 38 C.F.R. § 4.83a (2008). Visual acuity is rated based upon the best distant vision obtainable after correction by glasses. 38 C.F.R. § 4.75. Eye impairment is rated on the basis of impairment of central visual acuity. Diagnostic Codes 6061-6079 contain the criteria to evaluate impairment of central visual acuity. A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity of one eye is to 20/200 and 20/70 in the other eye; (2) corrected visual acuity of one eye is to 15/200 and 20/70 in the other eye; (3) corrected visual acuity in one eye is to 10/200 and 20/50 in the other eye; (4) corrected visual acuity is to 5/200 in one eye and 20/50 in the other eye; or (5) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes, 6066, 6070, 6073, 6076. A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is to 20/100 in both eyes; (2) corrected visual acuity is to 10/200 in one eye and to 20/70 in the other eye; (3) corrected visual acuity is to 5/200 in one eye and 20/70 in the other eye; or (4) blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. 38 C.F.R. § 4.84a, Diagnostic Codes, 6065, 6069, 6073, 6076, 6078. In addition, 38 C.F.R. § 4.76 provides that measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. Under 38 C.F.R. § 4.76a (2008), ratings are assigned based on impairment of field vision, as follows. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual field in each of the eight 45 degree principal meridians. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in Table III. The degrees lost are then added together to determine the total degrees lost. This is subtracted from 500. The difference represents the total remaining degrees of visual field. The difference divided by 8 represents the average contraction for rating purposes. 38 C.F.R. § 4.76a (2008). According to Table III in 38 C.F.R. § 4.76a (2008), the normal visual field extent at the 8 principal meridians, in degrees, is: temporally, 85; down temporally, 85; down, 65; down nasally, 50; nasally, 60; up nasally, 55; up, 45; up temporally, 55. The total visual field is 500 degrees. Diagnostic Code 6080 provides that concentric contraction of visual field to 5 degrees warrants a 100 percent disability rating for bilateral loss, a 30 percent disability rating for unilateral loss, or is rated as 5/200 (1.5/60). Concentric contraction of visual field to 15 degrees, but not to 5 degrees, warrants a 70 percent disability rating for bilateral loss, a 20 percent disability rating for unilateral loss, or is rated as 20/200 (6/60). Concentric contraction of visual field to 30 degrees, but not to 15 degrees, warrants a 50 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/100 (6/30). Concentric contraction of visual field to 45 degrees, but not to 30 degrees, warrants a 30 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/70 (6/21). Concentric contraction of visual field to 60 degrees, but not to 45 degrees, warrants a 20 percent disability rating for bilateral loss, a 10 percent disability rating for unilateral loss, or is rated as 20/50 (6/15). Bilateral loss of the temporal half of the visual field warrants a 30 percent disability rating, unilateral loss warrants a 10 percent disability rating, or is rated as 20/70 (6/21). Bilateral loss of the nasal half of the visual field warrants a 20 percent disability rating, unilateral warrants a 10 percent disability rating, or is rated as 20/50 (6/15). 38 C.F.R. § 4.84a, Diagnostic Code 6080. The Veteran was afforded a VA eye examination in June 2004. It was noted that in 1945, during World War II, he had been struck in the eye with a piece of steel. Twelve years later, the eye was removed. The Veteran's right eye had uncorrected visual acuity of 20/200, 20/40-1 corrected near, and far 20/40, 20/25-1. The left eye was noted to be enucleated secondary to shrapnel wound. The examiner stated that it was more than 50 percent likely that an infection such as uveitis eventually caused gangrene and a necessity to remove the eye. The Veteran was again examined by VA in February 2005. A previous diagnosis of giant papillary conjunctivitis secondary to prosthesis left eye was noted. The report also indicated that in October 2003 he had visual field testing in the right eye that was very unreliable with 42% false negatives and markedly abnormal cloverleaf pattern to visual field with mean deviation of -21.64. Gonioscopy revealed ciliary band 360 degrees with few iris processes. On examination, the Veteran was noted to be blind on the left due absent left eye. His right eye uncorrected vision was near 20/400 and far 20/80+2. His right eye corrected vision was near 20/40 and far 20/40+2. Intraocular pressure on the right was OD: 17, there was no diplopia, and extraocular movements indicated full version right eye. Visual field defect, right only, was kinetic 45, 0 - 51, 45 - 51, 90 - 35, 135 - 53, 180 - 68, 215 - 65, 270 - 49, and 315 - 67. Lids and lashes were normal, conjunctiva/sclera was quiet OU, the cornea showed endothelial snails tracks central OD, anterior chamber was deep and clear OD, the iris dilated OD, and lens examination noted posterior chamber intraocular lens OD with open posterior capsule OD. Retinal examination OD was minimal due to Veteran inability to cooperate with examination. After examination, the Veteran was diagnosed with acquired anaphthalmous OS due to World War II injury, pseudophakic OD not related to the anaphthalmous OS, glaucoma suspect on appearance of optic nerve but stable, right eye, unlikely to be related to anaphthalmous OS, and giant papillary conjunctivitis left eye secondary to the prosthesis, definitely related to anaphthalmous OS. The Veteran was afforded an additional VA examination dated in January 2007. His medical history was noted. On examination, his right eye uncorrected vision was near 20/70 and far 20/30. His right eye corrected vision was near 20/30- and far 20/30. The Veteran was noted to be missing his left eye. Intraocular pressure on the right was OD: 19, there was no diplopia, and extraocular movements indicated full version right eye. Visual field defect, right only, was 0 - 66, 45 - 58, 90 - 42, 135 - 60, 180 - 0, 215 - 0, 270 - 60, and 315 - 69. His eyelids and lashes were normal OD, with heavy mucous on lashes OS, conjunctiva/sclera was quiet OU, the cornea showed dense arcus OD, anterior chamber was deep and clear OD, the iris dilated OD, and lens examination noted PC IOL with open posterior capsule OD. Retinal examination OD indicated normal macula and vessels, neurorim with pallor inferior, and cup to disability of "35 with inferior notch (?)". After examination, the Veteran was diagnosed with acquired anaphthalmous OS due to World War II injury, pseudophakic OD, floaters OD, glaucoma suspect, and history giant papillary conjunctivitis left eye secondary to the prosthesis, improved. Finally, the Veteran was afforded a VA examination in October 2007. However, he refused to be examined for this report. He was again diagnosed, as noted above, and a negative opinion was afforded regarding the Veteran's right eye as secondary to the service-connected left eye disability. Upon review of the medical evidence of record, the Board finds that an evaluation in excess of 40 percent, at any time since service connection was awarded, is not warranted by the medical evidence. Throughout this appeal, the Veteran was noted have an enucleated left eye with corrected near and far vision of 20/30 to 20/40. This evidence corresponds to a 40 percent evaluation. In order to warrant a higher evaluation, a finding of blindness or anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, must be demonstrated, and was not in this case. The Board further finds no support for a higher rating based on evidence of impairment of visual field loss. The Veteran's right eye is not service-connected. Additionally, as the evidence has not demonstrated a degree of impairment in excess of 40 percent at any time during the pendency of this appeal, a staged rating is not warranted at the present time. See Fenderson, supra. The Board has also considered the other regulations involving the eye, but does not find them applicable to this case, as no competent examiner has described the Veteran's left eye disability as analogous to other disabilities of the eye, or affecting visual acuity, that warrant a higher evaluation. See 38 C.F.R. § 4.84a, Diagnostic Codes 6000-35. Accordingly, the Board finds that a 40 percent disability rating and no higher for left eye disability is warranted. As a preponderance of the evidence is against the award of a disability rating in excess of 40 percent, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board notes that the VA examinations of the Veteran may not have been conducted with the benefit of reviewing of the claims file. However, even if the claims file had not been available, the Board notes that the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file. As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record. Id. A review of the Veteran's claims file, while desirable, was not necessary to the successful evaluation of the claim. In addition, with respect to the claim, the Board has also considered the statements that the claimed disability was worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran was competent to report his symptoms during his lifetime because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He was not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. The Board also notes that the record does not establish that the schedular criteria are inadequate to evaluate the disability such as to warrant assignment of a higher evaluation on an extra-schedular basis. Indeed, higher evaluations for the claimed disability were available, but the criteria associated with such higher evaluations had not been demonstrated. Accordingly, the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). B. Propriety of reduction. By operation of law, a previous rating decision by the RO is binding and will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.104(a), 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). Under the provisions of 38 C.F.R. § 3.105, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. Additionally, a Veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e)(i). If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to a Veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a Veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. A reduction is void ab initio if the RO reduces a Veteran's disability rating without following these requirements. See, e.g., Greyzck v. West, 12 Vet. App. 288, 292 (1999). Evaluation of the propriety of the rating decision issued in January 2009 requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. That is, the rating decision on appeal was based on a determination that CUE existed in the April 2007 rating decision. If CUE was not present in the prior decision, then there is no basis for the reduction. If CUE was present in the April 2007 rating decision, because the remedy used to correct such error was reduction, the proper procedures governing reduction must be observed. The Board is required to analyze both questions. The Veteran was granted entitlement to service connection for his left eye disability, evaluated as 40 percent disabling, in a rating decision dated in September 2004. He later sought a higher evaluation, and the RO, in an April 2007 decision increased the rating to 60 percent disabling, effective October 16, 2006. The RO noted the findings of the Veteran's January 2007 VA examination, as set forth above, and determined that such findings supported a 60 percent evaluation. In reviewing the claim on appeal, the RO in August 2008 found that the April 2007 rating decision granting an increased disability rating was based on CUE by considering the right eye as if it were service-connected. However, as noted above, the Veteran's right eye has never been service-connected. Diagnostic Codes in effect provide that a 40 percent evaluation is warranted where there is anatomical loss of one eye and corrected vision in the other eye to 20/50 and 20/40, respectively, in the other eye. A higher evaluation was not warranted unless there was anatomical loss of one eye and corrected vision in the other eye to 20/70 and 20/50, respectively. The Veteran's corrected right eye vision was never found to be worse than 20/40. The Board concludes that the RO's finding of CUE in the April 2007 rating decision was correct. The statutory or regulatory provisions extant at that time, specifically the applicable Diagnostic Codes, were incorrectly applied to the medical facts that existed at the time of the prior adjudication, and the error was undebatable and manifestly changed the outcome. The prior decision to increase the disability rating having been based on CUE, reduction is the proper remedy. The Board must therefore determine whether the proper procedures for implementing a rating reduction were followed. Once the RO determined that there was CUE in the April 2007 rating decision, the Veteran was sent a letter in October 2008, informing him of the error and the RO's intention to correct this error by issuing a rating reduction. The letter afforded him 60 days to provide additional evidence contesting the RO's decision. In January 2009, the RO issued a rating decision implementing the reduction in disability rating from 60 percent to 40 percent, effective May 1, 2009. The Veteran appealed the rating decision implementing the reduction. As set forth above, the procedural requirements for rating reductions were followed in this case. The RO properly issued a rating decision with a proposed reduction, listing the reason for the reduction, and providing 60 days for the Veteran to present evidence of why the reduction should not be carried out. After more than 60 days, in January 2009, the rating reduction was implemented, with an effective date also more than 60 days afterwards, as required by statute. Thus, the January 2009 rating decision was proper as to procedure and properly corrected CUE which was present in the April 2007 rating decision. Here, to the extent the Board finds that a reduction in disability rating was proper, VA's duties to notify and assist are not applicable where a prior, final decision is subject to CUE reversal. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); see also Hines v. Principi, 18 Vet. App. 227, 235 (2004). III. Earlier effective date for 60 percent evaluation for left eye disability. The instant decision shall consider only whether an earlier effective date is possible with respect to the assignment of a 60 percent evaluation for the Veteran's eye disability. The evidence also reflects the contentions that an earlier effective date is warranted for the award of service connection for the same eye disability. This has not yet been adjudicated and will be the subject of a later RO adjudication. With respect to the issue of an earlier effective date for the grant of a 60 percent evaluation for left eye disability, the Board notes that the provisions for the determination of an effective date of an award of disability compensation are set forth under 38 U.S.C.A. § 5110. The general rule with regard to an award of increased disability compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(q); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a); Criswell v. Nicholson, 20 Vet. App. 501 (2006); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). In addition, under 38 C.F.R. § 3.157(b) once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increased benefits: the report of examination or hospitalization at a VA or uniformed services medical facility, evidence from a private physician or layperson that shows the reasonable probability of entitlement to benefits, or examination reports or clinical records from State medical facilities or other institutions. The current assignment of an effective October 16, 2006 for the award of a 60 percent evaluation for left eye disability is based upon the RO's finding that the Veteran filed a claim for increase on that date. Thus, the Board has considered whether manifestations supporting the 60 percent rating were factually ascertainable within one year prior to that date. However as noted above, the Veteran at no time has warranted an evaluation in excess of 40 percent for his service-connected left eye disability. Therefore, as there was no factually ascertainable increase in disability during the period prior to October 16, 2006, the claim must be denied. Moreover, no records between the last final denial in September 2004 and the December 2006 request for an increase serve as an informal claim as contemplated under 38 C.F.R. § 3.157(b). In sum, the law governing assignment of effective dates is binding in this case. See 38 U.S.C.A. § 7104(c). The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. SMC for aid and attendance. Special monthly compensation (SMC) is payable at a specified rate if the Veteran, as the result of service-connected disability, is in need of regular aid and attendance. Need for aid and attendance means helplessness or is so nearly helpless as to require the regular aid and attendance of another person. A Veteran will be considered to be in need of regular aid and attendance if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under 38 C.F.R. § 3.352(a). See also 38 C.F.R. § 3.351(b),(c). The criteria to be considered in establishing a factual need for aid and attendance include: * the inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; * frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); * inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; * inability to attend to the wants of nature; or * incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). While it is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made, at least one must be shown. See Turco v. Brown, 9 Vet. App. 222 (1996). Moreover, it is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a claimant is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. Instead, they must be based on the actual requirement of personal assistance from others. The Veteran at the time of his death was service-connected for left eye disability, evaluated at 40 percent disabling. He had no other service-connected disabilities. After a review of all of the evidence of record, the Board finds that SMC is not warranted. As an initial matter, the evidence does not establish that the Veteran had a visual acuity of 5/200 or less in both eyes. The evidence does reflect that the Veteran was blind in the left eye due to enucleation. While he had been diagnosed with right eye disabilities, including pseudophakia and suspected glaucoma, along with diminished uncorrected visual acuity, the medical evidence does not indicate that the Veteran's right eye vision was of the severity required under 38 C.F.R. § 3.350(b)(3). Moreover, the evidence does not indicate that he was, or ever had been, a patient in a nursing home. Therefore, SMC based on aid and attendance is not warranted on these bases. SMC for aid and attendance is also not warranted on a factual basis under 38 C.F.R. § 3.352(a), as the evidence does not establish that the Veteran needed the assistance of another person on a regular basis for any of his daily needs or to protect himself from hazards present in his daily environment. Therefore, SMC is not warranted on this basis. And, while the evidence does indicate that the Veteran was suffering from significant cognitive decline due to late onset dementia, Alzheimer's type, the evidence does not indicate that he was unable to dress himself, feed himself or tend to the "wants of nature" due to his service-connected disability. He was also noted to be mobile and able to leave his home, although he would become lost on occasion. The appellant even testified that the Veteran would continue to attempt to drive into his later years, despite his vision disorders and cognitive decline. In this regard, the Board notes that the Veteran was afforded a VA psychiatric examination dated in a February 2007. In the examination, the Veteran was well dressed (although this was apparently the work of his spouse) and his speech was of a normal rate and tone. There was no pressure of speech, loosening of associations or flight of ideas. On cognitive testing the Veteran was oriented to person only and was unable to do simple math and abstract proverbs, and was not able to recall questions put to him, but showed no paranoia, delusions, or hallucinations. While the medical evidence indicates that the Veteran was having significant health and cognitive limitations at the time of his death, the medical evidence does not show that the requirements of 38 C.F.R. § 3.352(a) have been met. Therefore, based on the clinical observations of the Veteran during the course of the appeal, the evidence does not indicate that there is justification for SMC under any of the three avenues of entitlement set forth in C.F.R. §§ 3.351(b) and (c). In considering this claim, the Board has also considered the appellant's statements in support of the claim. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran was competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. See Layno, 6 Vet. App. at 470. However, he was not competent to state how his symptoms should be applied to the applicable standards set forth by VA regulations. The Board acknowledges the Veteran's and the appellant's belief that the Veteran's symptoms were of such severity as to warrant SMC for aid and attendance. However, SMC is based on his ability to live independently as determined by the clinical evidence of record. Therefore, the Board finds that the medical evidence, which directly addresses the criteria under which SMC is evaluated, to be more probative than the Veteran's own assessment. In conclusion, the evidence does not support the claim for SMC by reason of the need for regular aid and attendance of another person. The Board finds that equipoise is not shown, and the benefit of the doubt rule does not apply. Therefore, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an evaluation in excess of 40 percent for left eye disability is denied. Reduction of the schedular disability rating for left eye disability from 60 to 40 percent as of May 1, 2009 was proper. An effective date earlier than October 16, 2006 for the grant of a 60 percent evaluation for service-connected left eye disability is denied. Entitlement to special monthly compensation based on the need for regular aid and attendance, or on the account of housebound status, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs