Citation Nr: 18156847 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-51 026 DATE: December 11, 2018 ORDER Entitlement to an effective date earlier than December 15, 2014 for the grant of service connection for bilateral keratoconus (eye disability) is granted. FINDINGS OF FACT 1. The Veteran separated from service on September 1, 1988 and filed a claim for service connection for bilateral keratoconus on September 9, 1988. 2. In February 1, 1989, the Veteran filed a notice of disagreement with the October 1988 rating decision that denied his claim. 3. On May 15, 1989, the Veteran contacted the agency of original jurisdiction and stated that he did not wish to abandon his claim. 4. The Veteran’s May 15, 1989, contact with the agency of original jurisdiction was a substantive appeal of his September 1988 claim for service connection for a bilateral eye disability. CONCLUSION OF LAW The criteria for an effective date of September 2, 1988, for the award of service connection for the Veteran’s bilateral keratoconus are met. 38 U.S.C. §§ 5101, 5110, 5111 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from August 1977 to September 1988. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Earlier Effective Date The Veteran claims entitlement to an effective date prior to December 15, 2014, for the grant of service connection for bilateral keratoconus. The Veteran originally filed a claim for service connection for a bilateral eye disability on September 9, 1988. An October 1988 rating decision denied the Veteran’s claim for service connection, stating that the Veteran’s bilateral eye disability existed prior to service, and was not shown to be aggravated by his active service. In December 1988, the Veteran filed a notice of disagreement with the October 1988 rating decision. On February 1, 1989, the Veteran filed an additional notice of disagreement that was received by the agency of original jurisdiction (AOJ) on February 28, 1989. The Veteran was issued a statement of the case (SOC) continuing the denial of service connection on February 25,1989. Additionally, in March 1989 the Veteran was mailed correspondence indicating that had been scheduled for a hearing to present testimony and evidence regarding his claim of service connection to the AOJ. A March 1989 deferred rating decision notes that the Veteran did not appear for the scheduled hearing. An April 1989 report of contact notes that the Veteran, still believing his claim was being adjudicated, requested 15 days to submit additional evidence. In May 1989, the Veteran again contacted the AOJ and specifically informed them he did not wish to abandon his claim. Without further contacting the Veteran or sending additional correspondence, the AOJ determined the Veteran’s claim was abandoned and began relying on the February 1989 SOC as a final denial on the Veteran’s claim for service connection. In February 2009, the Veteran submitted an informal claim to reopen his previously denied claim for service connection. An April 2009 Veteran Claims Assistance Act (VCAA) letter informed the Veteran that he would need to submit new evidence within 30 days before his claim for service connection could be reopened. The Veteran’s claim was denied in June 2009 for failing to submit new evidence regarding his claim for service connection for a bilateral eye disability. He submitted another claim for service connection for a bilateral eye disability in December 2014. The Veteran’s claim included new private medical records regarding his current bilateral eye disability. In June 2015, the Veteran completed a VA eye conditions examination. Based on the findings of the June 2015 eye examination and review of the Veteran’s medical history, the VA examiner authored a medical opinion in favor of service connection for the bilateral eye disability. The Veteran’s claim for service connection for a bilateral eye disability was re-opened and granted in a June 2015 rating decision. The June 2015 rating decision assigned an effective date of service connection of December 15, 2014, the date the Veteran initiated his reopened claim for service connection. In an August 2015 notice of disagreement, the Veteran claimed entitlement to an effective date prior to December 15, 2014. The Veteran asserted that he was originally denied service connection in October 1988, and that his effective date for service connection should be based on the date of his original claim in September 1988. Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Otherwise, 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. Id. In the present case, the Board finds that the Veteran’s claim for entitlement to an effective date prior to December 15, 2014 is supported by the record. As discussed in detail, the Veteran made numerous attempts to inform the AOJ that he intended to pursue an appeal of the October 1988 rating decision. The Veteran filed an additional notice of disagreement in February 1989, well within the required one year of the October 1988 rating decision denial. In April 1989 and again in May 1989, the Veteran contacted the AOJ and indicated his intent to continue his appeal. As the SOC had already been issued, and the Veteran’s May 1989 specifically noted his intent to pursue his claim, the Board finds that the May 1989 contact and notification of intent to pursue his claim was a substantive appeal of the claim for service connection. The AOJ did not transfer the case to the Board for appellate adjudication. At the same time, the Veteran was not contacted or provided any written correspondence to inform him that his claim was considered abandoned and that the February 1989 SOC would be considered a final denial. Accordingly, the Board finds that the Veteran’s September 9, 1988 claim for service connection for a bilateral eye disability was never adjudicated on its merits by the Board. The date of claim is September 9, 1988. The Veteran separated from service on September 1, 1988. Thus, there are two potential effective dates, September 2, 1988 and the date entitlement arose. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The effective date for the grant of service connection can be no earlier than the date the disability first manifested. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In this case, bilateral keratoconus was diagnosed in service in April 1980, more severe in the left eye. The Veteran underwent a left keratoplasty in service in May 1980. He underwent a corneal graft in his right eye in November 1981, which was rejected and the revision was rejected in October 1987, on active duty. In May 2015, a VA examiner stated that, “[i]t is more likely than not that the current post-endophthalmitis and keratoplasty is a residual of the previously failed keratoplasty during active duty, after the in-service diagnosis. This is an immunologic process and the original failure sets up for more failures of graft success.” “[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). The Board finds that the correct effective date is one day following separation from service because entitlement arose in service. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel