Citation Nr: 19137125 Decision Date: 05/14/19 Archive Date: 05/14/19 DOCKET NO. 16-25 798 DATE: May 14, 2019 ORDER An effective date of April 12, 2007, for the grant of service connection for left eye blindness is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The appeal for an effective date prior to March 23, 2011 for the award of a total disability rating based upon unemployability (TDIU) is remanded. The appeal for an effective date prior to March 23, 2011, for the award of dependents educational assistance is remanded. The appeal for an effective date prior to February 19, 2014, for the award of special monthly compensation based on bilateral blindness is remanded. FINDINGS OF FACT 1. A January 1965 RO decision denied service connection for bilateral cataracts; although the notification letter incorrectly informed the Veteran that service connection had been granted, the RO notified the Veteran of the error in October 1965. 2. The Veteran did not appeal the January 1965 denial. 3. The Veteran filed a new claim for blindness in April 2007 which is reasonably construed as an application for service-connected benefits. CONCLUSIONS OF LAW 1. The January 1965 denial of service connection for bilateral cataracts is final. 38 U.S.C. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1965). 2. An earlier effective date of April 12, 2007, for the grant of service connection for left eye blindness is warranted. 38 U.S.C. §§ 5107, 5110. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to July 1964, when he was discharged on account of physical disability. Effective Dates In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. § 3.1(r), 3.400. Specifically with respect to service connection granted on a direct basis, such as the Veteran’s left eye cataract residuals which was established as directly related to military service, governing regulation provides that the effective date will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty; 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). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. The effective date of an award of increased disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date. Otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). December 1964 claim During service, the Veteran underwent a neurological evaluation for multiple neurological complaints during service. In addition to neurological findings including congenital nystagmus, he was given a diagnosis of “passive dependent type senile cataract, pre-senile bilateral.” After discharge from service, the Veteran submitted a claim to VA in December 1964 for service connection for cataracts. Based upon the service treatment records, in January 1965 the RO denied service connection for the cataracts as congenital in nature. However, the letter sent by the RO to notify the Veteran of this decision erroneously indicated that cataracts were service-connected but noncompensable. This letter informed the Veteran of how to appeal the denial if he wished, and of the one-year time limit for doing so. In September 1965, a private attorney wrote the RO to inform that the Veteran was planning to have surgery for the removal of one cataract in October 1965, and the other one would be removed at a later date. The letter informed the RO that the Veteran would be requesting reimbursement for the expenses of such surgery since the cataracts were service-connected. The letter also informed the RO that the Veteran had been dismissed from four different jobs because of his defective vision and that he had been refused employment from another company because of his defective vision. He was also unable to obtain a driver’s license due to his progressively worsening vision. For this reason, the Veteran was also seeking an increased disability rating for the cataracts. In October 1965, the RO informed both the Veteran and the private attorney that because the attorney had not been recognized to practice before VA that no action could be taken on his September 1965 letter. The RO also informed the Veteran that the January 1965 notice letter had erroneously informed him that his cataracts were service-connected. The RO apologized for the erroneous statement; but reiterated that service connection had not been granted for the cataracts and that the Veteran had no entitlement to treatment for cataracts. The letter did not inform the Veteran of his right to appeal the denial. The Veteran did not respond to these letters in any way. He did carry on correspondence about his educational program which he pursued under the auspices of VA educational benefits. In March 1973, he wrote his Congressman about his educational benefits. In this letter, he provided a history of his cataracts as having started during service. He stated that in 1966 he had had to drop out of his VA-sponsored classes due to vision problems. During this time frame, the Veteran also married and started a family. In June 1973, the Veteran filed another application for compensation, claiming service connection for cataracts in both eyes, which he stated had begun in April 1963 and for glaucoma in both eyes which he stated had begun in April 1970. The RO sent him a letter the same month informing him that disability compensation for his “eye condition” had been denied in January 1965. Although he had been advised of his right to appeal at that time, because he had not done so, his appeal had become final. The letter then informed him that “since no new substantiating evidence has been submitted in support of your claim, no further action may be taken.” The Veteran took no action in response to the June 1973 denial. He did not contact the VA again until 2007, when he filed a claim for VA benefits related to blindness. The Veteran’s attorney is essentially claiming that the Veteran deserves an earlier effective date for the grant of service connection for a left eye cataract. The attorney argues that because of the mistake in the January 1965 notice letter, the denial decision has never achieved finality, meaning that the claim remains open these many years later. In support of this assertion, the attorney argues that the RO should have issued an amended rating decision clarifying the denial. The Board disagrees with this argument. The rating decision did not need to be amended because the decision itself was clear. The notification letter provided to the Veteran was incorrect and thus confusing, and was later corrected. Importantly, the underlying rating decision did not award service connection for cataracts and, thus, the provisions pertaining to severing service connection could not apply. Thus, this case is distinguishable from Sellers wherein the claimant received an actual rating decision awarding benefits in error. See generally Sellers v. Shinseki, 25 Vet. App. 265 (2012). The Veteran did not submit anything which could be construed as a notice of disagreement with either the rating decision or the second notice letter, which informed him that his claim for service connection for cataracts had been denied. To the extent the Veteran’s attorney argues that the September 1965 private attorney’s letter was a notice of disagreement with the January 1965 denial, the Board observes that the letter was not signed by the Veteran and the attorney was not a valid, recognized representative with authority to act on behalf of the Veteran. Both the attorney and the Veteran were so informed in October 1965. They were provided with the appropriate form at that time, but neither took any action to correct the situation. The Veteran did not appeal the January 1965 decision and it thus became final one year after he was notified of the decision in October 1965. 38 U.S.C. § 4005(c) (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1965). Thus, as finality attaches, the claim has not remained silently pending over the years. Rather the evidence indicates that in 1965, the Veteran was busy attending school and starting a family, and he did not challenge the January 1965 RO decision. The Board also finds that the June 1973 claim as to cataracts was appropriately handled by the RO. After filing the claim, the RO informed him that service connection had been denied and that new and material evidence was required to reopen it. However, the RO erred in treating the Veteran’s claim involving glaucoma the same as the claim involving cataracts. The Veteran had not previously filed a claim for service connection for glaucoma and thus such a claim could not have been denied. April 2007 claim The Veteran filed an application for compensation in April 2007. He stated he was 100 percent disabled, legally blind, and had had a stroke in March 2004. March 2004 was when he had last worked. He submitted a statement from his physician showing that he had end stage glaucoma, nystagmus, and blindness secondary to the stroke. Although he checked the box on the application form that he was applying for VA compensation benefits, he submitted a cover note indicating that “This packet is an application for pension consideration.” A May 2007 Report of Contact Form reflects that a Veterans Services Representative unsuccessfully attempted to phone the Veteran twice in one day. The written explanation on the form was as follows: Called Vet to clarify his claim. Vet submitted [a VA Form] with multiple medical documents stating he is submitting an application for pension. However, on page 1, Part A, … Vet indicates his claim is for Compensation. Although he excluded Part B of the Form claiming disabilities, he did list conditions of being legally blind, 100% disabled, and a stroke in Part A, Remarks. After discussing the claim with my mentor, the recommendation was to call the vet to clarify. If the Vet could not be contacted, process the claim as a Pension only claim. I attempted to contact the Vet twice today with no contact, so the claim is being process for only pension. A May 2007 letter from the RO informs the Veteran that his claim for “pension with special monthly pension benefits” was denied because he did not have wartime service, and thus did not qualify for pension benefits. The letter informed him that if he did not agree with the denial, he should write and explain why not within one year. Enclosed with the letter was a VA Form explaining his right to appeal and the procedures for doing so. The Veteran did not appeal and did not contact the VA again until December 2010 when he executed a representation agreement with the Blinded Veterans Association and submitted a copy to VA. Upon careful consideration, the Board determines, that interpreting the Veteran’s claim in a light most favorable to him under these particular circumstances, the record reflects an intent to file a claim for VA compensation benefits for cataracts. Initially, the Board takes judicial notice of the fact that lay people, such as the Veteran in this case, frequently refer to Veterans’ pension benefits interchangeably with compensation benefits—the term “pension” has both a general meaning, and a specific legal meaning. Additionally, the law in place in 2007 was clear that VA had an obligation to review all issues which are reasonably raised from a liberal reading of all documents or oral testimony submitted prior to the Board decision. EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Myers v. Derwinski, 1 Vet. App. 127, 129 (1991). Governing regulation at the time provided, “A claim by a Veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.” 38 C.F.R. § 3.151 (2007). Given that service connection for left eye blindness was granted in 2013, effective in 2011, based upon essentially the same facts as the Veteran presented in his 2007 application, the Board finds that an earlier effective date for the grant of service connection for left eye post-operative cataracts is warranted to reflect the earlier application date. Therefore, an effective date for the award of service connection for left eye blindness of April 12, 2007, is warranted, reflecting the date his application was received by VA. When this matter is returned to the RO, implementing this grant will involve determining the appropriate disability rating(s) to be assigned for the time period between 2007 and 2011, the current effective date. REASONS FOR REMAND March 2011 claim In March 2011, the Veteran submitted another application for compensation, seeking service connection for cataracts and glaucoma. He submitted additional pieces of medical evidence and lay statements to establish that his cataracts developed during service and that glaucoma was caused by the cataract surgeries. The RO denied this claim in September 2011. They found that the Veteran had not submitted new and material evidence sufficient to reopen the previously-denied claim for service connection for cataracts. Service connection for glaucoma was denied on the basis that glaucoma was secondary to cataracts. The Veteran, with the assistance of his attorney, filed a timely notice of disagreement with this denial. The RO then obtained a VA examination in March 2013. The examining ophthalmologist found that the Veteran was totally blind in his left eye with greatly reduced vision in his right eye. The ophthalmologist was able to review the service treatment records. Based upon the records review and the clinical examination, the examiner concluded that the Veteran’s left eye blindness was due to glaucoma which occurred as a result of the cataract surgery. The Veteran’s right eye blindness, however, was due to the stroke he experienced in March 2004. Based upon the inservice evidence showing the Veteran’s cataracts first developed during service together with the VA examiner’s opinion, in September 2013, the RO granted service connection for left eye blindness, with compensation for right eye vision loss under the provisions of 38 U.S.C. § 1160 and 38 C.F.R. § 3.383. A 90 percent disability rating and special monthly compensation based upon loss of use of the left eye were assigned effective March 23, 2011, representing the date the Veteran’s claim was received at VA. The three effective date appeals certified to the Board are 1) an effective date prior to March 23, 2011 for the award of a total disability rating based upon unemployability; 2) an effective date prior to March 23, 2011, for the award of dependents educational assistance, which is a benefit predicated upon a finding of permanent and total disability; and 3) an effective date prior to February 19, 2014, for the award of special monthly compensation based on bilateral blindness, which is a higher rate of special monthly compensation than the loss of use rate awarded in the September 2013 decision. Because the effective dates assigned to the award of a TDIU, dependents educational assistance, and special monthly compensation based on bilateral blindness will need to be recalculated following the Board’s grant of an earlier effective date for the grant of service connection for left eye blindness, the Board will remand these issues for the RO to make the first determination as to the most appropriate effective dates. With regard to the question of an earlier effective date for TDIU, the Board observes that the Veteran’s Social Security earnings record shows he did not work or earn any income in 2007 and 2008. From 2009 through 2012, however, he reports he was employed at the Lions Services, which provides employment for blind people. His attorney argues that such employment should be considered marginal employment so as to allow for concurrent receipt of TDIU benefits during this time period. According to governing regulation, “Marginal employment shall not be considered substantially gainful employment. … marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.” 38 C.F.R. 4.16(a). Marginal employment may also be held to exist, on a facts found basis, which includes but is not limited to employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. Id. On remand, the RO will have to analyze whether 1) the Veteran’s income during the time he was employed with Lions Services exceeded the annual poverty threshold established for the years from 2009 through 2012; and 2) if his income exceeded this limit, whether Lions Services constituted a protected environment as defined by regulation and interpreted by the Court. The question of an increased rating for the Veteran’s service-connected eye disabilities must also be remanded. At this point in time, since February 2014, the Veteran has been in receipt of the highest possible schedular disability rating for loss of vision in both eyes. A 100 percent disability rating is currently in effect. Thus, the only question therefore is the appropriate schedular disability rating to be assigned between the new effective date of April 12, 2007, and February 2014. Like the questions of earlier effective dates, this is a matter for the RO to review in the first instance. With regard to the level of special monthly compensation currently assigned, since February 19, 2014, the Veteran has been receiving special monthly compensation at the rate set forth in 38 U.S.C. § 1114(p), representing blindness of one eye with light perception and blindness of the other eye having no light perception. The report of a January 2016 VA examination shows some light perception in the right eye, although the examiner described the Veteran as “totally blind. IF the Veteran reports that he has lost light perception in his right eye since 2016, then another VA examination for confirmation should be scheduled. In light of the special effort it likely takes for the Veteran to report for a VA examination, such an examination should only be scheduled if the Veteran reports he has lost light perception in the right eye and requests the opportunity for a VA examination. As these matters are being remanded, the Veteran and his attorney will have another opportunity to present relevant and helpful argument regarding the Veteran’s assertion that earlier effective dates are warranted. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private eye care received between April 2007 and the present. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any VA treatment records prior to December 2010 and after November 2017 for inclusion in the claims file. 3. Ask the Veteran whether he retains light perception in his right eye and if not, whether he is able and willing to report for a new VA examination. IF SO, the Veteran should be afforded a VA examination by a licensed optometrist or by a licensed ophthalmologist (38 C.F.R. § 4.75(b)) to medically identify whether he has light perception in his right eye. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. 4. After implementing the grant of an effective date of April 12, 2007, for service connection for left eye blindness, the RO should again review the appropriate disability ratings assigned to the Veteran’s eye impairment from 2007, and the effective dates assigned to TDIU, dependents educational assistance, and special monthly compensation. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Heather J. Harter