Citation Nr: 21066579 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-14 631A DATE: November 1, 2021 ORDER Entitlement to an effective date earlier than January 28, 2014 for the grant of special monthly compensation (SMC) based on loss of use of left eye is denied. FINDING OF FACT On January 28, 2014, the Veteran filed a formal claim for SMC for a left eye disability; there were no prior formal or informal claims for an increased rating or SMC for the left eye disability pending. The evidence does not show that an increase in disability occurred within the one year prior to the filing date. CONCLUSION OF LAW The criteria for an effective date earlier than January 28, 2014 for the grant of SMC based on loss of use of left eye have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1952 to April 1954. In a January 2020 rating decision, the Veteran was granted SMC, effective January 28, 2014, the date the Veteran's claim for SMC was received by VA. In March 2020, the Board dismissed this matter, finding that the January 2020 rating decision constituted a total grant of benefits sought. The Veteran appealed this dismissal to the U.S. Court of Appeals for Veterans Claims (the Court). In a March 2021 Memorandum Decision, the Court held that the Veteran's disagreement with the effective date of the grant of SMC constitutes an actual case or controversy which must be adjudicated by the Board. Pursuant to the March 2021 Memorandum Decision, the Board will adjudicate the matter of whether the Veteran is entitled to an earlier effective date for the grant of SMC. Entitlement to an effective date earlier than January 28, 2014 for the grant of special monthly compensation (SMC) based on loss of use of left eye The Veteran is seeking an effective date earlier than January 28, 2014 for the grant of special monthly compensation (SMC) based on loss of use of left eye. Legal Criteria In addition to any benefits already received, SMC under 38 U.S.C. § 1114(k) is payable where there is blindness of one eye, having only light perception. 38 C.F.R. § 3.350(a). Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility. 38 C.F.R. § 3.350(a)(4). The effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation. SMC is available when, as the result of a service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by the rating schedule. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011); see also 38 U.S.C. § 1114 (k)-(s). A veteran is presumed to be seeking the maximum benefit allowed by law or regulation; therefore, an appeal for a higher rating may include the inferred issue of entitlement to SMC even where the veteran has not expressly placed entitlement to SMC at issue. Akles v. Derwinski, 1 Vet. App. 118 (1991). Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. Analysis In this case, the Veteran is seeking an effective date earlier than January 28, 2014 for the grant of SMC based on loss of use of the left eye. This date is based on the date VA received the Veteran's claim for SMC for his service-connected left eye disability. Upon review of the record, the Board finds that an effective date earlier than January 28, 2014 is not warranted for the grant of SMC. The evidence shows that the Veteran's claim for SMC was received on January 28, 2014. Although the Veteran pursued Vocational Rehabilitation and Employment (VR&E) services from VA, the record does not reveal any prior pending claim for an increased rating for the left eye disability. Further, there is insufficient evidence from the one year prior to the date of the Veteran's claim to demonstrate an increase in disability during that period which would warrant SMC. While the Veteran reported difficulties with his left eye disability in correspondence related to VR&E service, the Board finds that such symptoms were not of the severity to cause loss of use of the left eye as defined under 38 U.S.C. § 1114(k). Based on the foregoing, the Board finds that the evidence preponderates against a finding of entitlement to an effective date earlier than January 28, 2014, for SMC based on loss of use of the left eye, as the evidence does not demonstrate that blindness in his left eye was factually ascertainable within the one year preceding the filing date, nor is there evidence of a previous pending, unadjudicated claim for an increased rating. Consequently, the effective date of January 28, 2014, is the earliest allowable date under the law, and an earlier effective date for grant of SMC is not warranted. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.