Citation Nr: 1514027	
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  14-27 513	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUES

1.  Entitlement to an effective date for an award of service connection for a bilateral optic nerve disorder prior to December 9, 2008.

2.  Entitlement to a rating in excess of 20 percent for a bilateral optic nerve disorder.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

 James R. Siegel, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from February 1966 to November 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Honolulu, Hawaii Department of Veterans Affairs (VA) Regional Office (RO) that implemented an August 2012 Board decision granting compensation benefits under 38 U.S.C.A. § 1151 by assigning a 20 percent rating for a bilateral optic nerve disorder, effective December 9, 2008. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of a rating in excess of 20 percent for a bilateral optic nerve disorder is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if additional action on his part is required.


FINDING OF FACT

The Veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 was received on December 9, 2008.



CONCLUSION OF LAW

The criteria for an award of an effective date for compensation benefits under 38 U.S.C.A. § 1151 prior to December 9, 2008 have not been met.  38 U.S.C.A. §§ 5101(a), 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.400 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  By correspondence dated in April 2009 and November 2012, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards.  It is not alleged that notice was less than adequate.

The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.

Legal Criteria, Factual Background and Analysis

The Board has reviewed all the evidence in the appellant's VA record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Veteran's claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2014) was received by the VA on December 9, 2008.  

In a March 2006 letter, a VA Regional Counsel advised the Veteran that his administrative tort claim (SF-95) had been received.  In October 2007, the VA Regional Counsel informed the Veteran that his claim was denied.  He was notified he could file a request for reconsideration or file suit in accordance with the Federal Tort Claims Act. 

By decision dated in August 2012, the Board granted the Veteran's claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151.  The RO effectuated this decision in a September 2012 rating decision, and assigned a 20 percent evaluation for a bilateral optic nerve disorder, effective December 9, 2008.

The effective date of an award of disability compensation under 38 U.S.C.A. § 1151 shall be the day injury or aggravation was suffered if claim is received within one year after that date; otherwise, date of receipt of claim.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(i).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155.

The Veteran submitted his initial claim for compensation benefits under 38 U.S.C.A. § 1151 on December 9, 2008.  The claim was originally denied by the RO in June 2009, and the Veteran filed a timely appeal to the Board.  Following the Board's determination to grant the appeal, the RO, by rating action dated in September 2012, assigned a 20 percent evaluation for a bilateral optic nerve disorder effective December 9, 2008.  

The August 2012 Board decision which granted the § 1151 claim resolved doubt in the Veteran's favor to find that medication prescribed by VA in 2004 had the unforeseen result of causing the Veteran's ischemic optic neuropathy.  The Veteran did not file a claim for § 1151 benefits within a year of the VA treatment in 2004.

Further, a close review of the record does not show that the Veteran filed a claim seeking § 1151 benefits for his bilateral optic nerve disorder prior to December 9, 2008.  Under the governing law, there is no legal basis for awarding an earlier effective date for the award of service connection for an eye disability given the undisputed facts presented.  The Veteran argues that the medical records show that he had sustained irreversible eye damage in 2004.  While this is true, the fact he did not file a claim for benefits under 38 U.S.C.A. § 1151 until December 2008 is dispositive.  

The Board acknowledges that the Veteran did file a claim pursuant to the Federal Torts Claim Act.  This was administratively denied.  That claim pertains to tort damages as opposed to VA compensation benefits. It is a different claim from a claim for compensation benefits under 38 U.S.C.A.  § 1151, and there is no statutory or regulatory provision that provides that a claim under the Federal Torts Claims Act will be accepted as a claim for VA compensation benefits under 38 U.S.C.A. § 1151.  See 38 C.F.R. § 3.153 (2013) (an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with Social Security Administration will be considered a claim for death benefits and to have been received by VA as of the date of receipt by the Social Security Administration).  Therefore, the formal claim against VA under the Federal Torts Claims Act cannot be accepted as a formal claim, informal claim, or written intent to file a claim for compensation pursuant to 38 U.S.C.A. § 1151.  

The receipt of medical records showing he had a bilateral optic nerve disorder in 2004 is, in the absence of a claim received within one year of that date, not a basis for assigning an earlier effective date.  Since the Veteran's claim for benefits under 38 U.S.C.A. § 1151 was not received until December 9, 2008, there is no basis on which an earlier effective date may be assigned. 


ORDER

An effective date for an award of compensation benefits under 38 U.S.C.A. § 1151 prior to December 9, 2008 is denied.


REMAND

The Veteran also asserts that a higher rating should be assigned for his bilateral eye disability.  During a hearing at the RO in June 2013, the Veteran testified that he is nearly blind in his left eye and the right eye has been affected as well.  He submitted a May 2013 examination report from a private optometrist showing that both distant and near visual acuity in the left eye was 20/200.  In the right eye, distant visual acuity was 20/25 and near visual acuity was 20/20.  

A VA examination of the eyes was conducted in February 2014.  The examination report indicates the Veteran was uncooperative during most of the testing.  Corrected visual acuity was 20/50 in the right eye and worse than 20/400 in the left eye.  The diagnoses were compound myopic astigmia of the right eye/presbyopia; epithelial basement membrane dystrophy of both eyes without effect on vision; pseudophakia of both eyes; and optic nerve head pallor secondary to anterior ischemic optic neuropathy per previous records, causing decreased visual acuity and field loss in both eyes.  

A June 2014 addendum reveals the examiner stated she did not believe the results of the visual field or visual acuity testing were valid.

The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination.  Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).  Under 38 C.F.R. § 3.326(a) (2014), a VA examination will be authorized where there is a possibility of a valid claim.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Please ask the Veteran to identify all providers of evaluations and/or treatment (VA and non-VA) he has received for his bilateral eye disability since December 2008, and to submit authorizations for VA to secure records of all such evaluations and treatment from any private providers.  Then, secure complete clinical records of the evaluations and treatment from all providers identified that are not currently associated with the record on appeal.

2.  Please arrange for a VA examination to determine the current severity of the Veteran's bilateral optic nerve disorder. 

3.  The AOJ should then review the record and readjudicate the claim on appeal.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter 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 2014).






______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs