Citation Nr: 21012788 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-47 269 DATE: March 5, 2021 ORDER Entitlement to an effective date of October 11, 2007, for the grant of special monthly compensation (SMC) based on blindness in both eyes having only light perception, is granted subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT From October 11, 2007, the Veteran had a visual field reduced to 5 degree concentric contraction in both eyes. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 11, 2007, but no earlier, for the grant of SMC based on blindness in both eyes having only light perception have been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 3.350. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1961 to November 1963. He died in August 2015 and the appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted SMC based on blindness in both eyes effective October 31, 2011. In March 2016, the appellant filed a notice of disagreement with the effective date assigned. In February 2017, after filing a claim for accrued benefits, she was granted substitution as the spouse of the Veteran, and was issued a statement of the case in July 2017, perfecting the appeal to the Board in September 2017. In October 2018, the appellant testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In March 2019, the Board, finding clear and unmistakable error (CUE) in the March 1977 rating decision, granted the award of service connection for retinitis pigmentosa effective February 16, 1977, and remanded, among one other thing, entitlement to an earlier effective date than October 31, 2011 for the award of SMC pursuant to 38 U.S.C. § 1114 (m). In September 2020, the Board remanded the claim for additional development, requesting authorization to retrieve any additional private treatment records. The additional private treatment records that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claim on appeal. Thus, the AOJ substantially complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a final preliminary matter, the Board notes that the appellant submitted a VA form 10182 notice of disagreement in December 2020 following the issuance of a November 2020 supplemental statement of the case, but failed to elect a Board review option. The Board notified the appellant of this oversight in a December 2020 letter, and advised the appellant that she would be allotted 60 days from the date of the letter to provide clarification as to a Board review option. As the appellant has not responded to the December 2020 letter within the allotted 60 days, the Board will proceed with adjudication of the appeal as a Legacy appeal. Earlier effective date for SMC The appellant, through her attorney, indicated in the March 2016 notice of disagreement that the effective date of the grant of SMC should be the date of the initial filing of the Veteran’s claim for service connection for his eye disability in 1977. The attorney stated that the original claim was denied in April 1977, but reopened and granted based on the receipt of new and material evidence by the Board in a March 2015 decision. He contends that the date of claim in this case should be based on the first claim in 1977. Generally, the effective date for an award of service connection and disability compensation for a claim received within one year after separation from service is the day following separation from active service or the date entitlement arose; otherwise, the effective date for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2)(i). The Board’s analysis will necessarily include a determination of the date of the claim and the date when entitlement arose. The words “claim” and “application” are defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Prior to March 24, 2015, a claim could be either a formal or an informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1 (p) (2014). It has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.... It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). 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. Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(3). The effective date statute and its implementing regulations require that the evidence demonstrate that at least some portion of the increase in disability occurred within the one-year period prior to the date of the claimant’s claim for increase to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed.Cir.2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that “an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim... to receive the benefit of an earlier effective date”). For the purpose of authorizing benefits, the adjudicative decision which constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a)(1)(ii). SMC rate payable under 38 U.S.C. § 1114 (m) and 38 C.F.R. § 3.350 (a)(4) is warranted if the veteran, as the result of service-connected disability, has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so significantly disabled as to be in need of regular aid and attendance. For purposes of SMC as provided by 38 U.S.C. § 1114 (m), blindness is defined as visual acuity 5/200 or less, or the vision field reduced to 5 degrees concentric contraction in both eyes. See 38 C.F.R. § 3.350(c)(3). In this case, the question is when the Veteran’s eligibility for SMC was factually ascertainable. See Hazan v. Gober, 10 Vet. App. at 521. Currently, the Veteran has been awarded SMC from October 31, 2011, the date of the claim to reopen entitlement to service connection for retinitis pigmentosa, and the date when the Veteran became statutorily eligible for SMC due to his service connected retinitis pigmentosa. As previously discussed, service connection for retinitis pigmentosa was subsequently granted from February 16, 1977 as there was CUE in the March 31, 1977 rating decision. Therefore, the Board will consider evidence from February 16, 1977, the date the Veteran filed his original claim, to determine the date entitlement arose for SMC. March 1963 service treatment records reflect the Veteran suffered from defective vision and wore glasses to correct his defective vision. Additional March 1963 service treatment records indicate the Veteran was found to have general constriction of visual fields, marked loss of night vision, and retinal pigmentary degeneration. October 1963 service treatment records indicate the Veteran performed very poorly on his night vision test, and reflected quite a degree of night blindness. The Veteran’s October 1963 Report of Medical History upon separation from service indicates that at the age of 18, the Veteran had 20/20 vision which has since decreased to the present 20/400 with loss of night vision for the past 10 years. A November 1963 medical examination report upon separation reflected that the Veteran suffered from ophthalmoscopic issues. In a March 1977 Certificate of Attending Physician, the Veteran’s treating physician noted that the Veteran had a diagnosis of retinitis pigmentosa bilaterally in advanced stage, but that there was reduced central visual acuity to 20/50 in each eye corrected, and marked reduction in peripheral visual fields. The Veteran’s daughter testified that the Veteran had to stop working in 1976 as he was unable to see well enough to drive, and that he could not see out of his right eye, and his left eye was like “looking through a coffee stirrer.” September 1987 private treatment notes reflect that the Veteran has retinitis pigmentosa and an extremely dense posterior subcapsular cataract, particularly in the right eye. The notes indicate that the Veteran cannot see straight ahead, and had fallen as a result. A November 1987 letter from the Veteran’s private physician indicated that the Veteran was totally and permanently disabled from a visual standpoint. A September 1998 letter from the Veteran’s private physician reflected that the Veteran had light perception with poor projection in the right eye, and 20/25 vision in the left eye. The physician also noted that the Veteran has lost his visual field in his right eye, and has a small visual field in his left eye. November 2006 medical treatment records indicate the Veteran reported being legally blind since 1977. The records reflect the Veteran underwent cataract surgery in 1991. June 2007 private treatment records reflect best corrected visual acuity of 20/400 in the left eye, and light perception in the right eye, total visual field loss in the right eye, and indecipherable notes regarding the left eye. In a September 2007 statement, the Veteran reported having been diagnosed with end stage retinitis pigmentosa, and indicated that he has been legally blind since 1976 which forced him to retire at 37 years of age. In an undated note, the Veteran’s physician reported that the Veteran has advanced retinitis pigmentosa with peripheral visual fields reduced to about 5 degrees in either eye, and central vision of 20/50 in each eye. The physician stated that due to the marked constriction of visual fields and severe night blindness, the Veteran is totally and permanently disabled and will probably get worse with time. In an October 2007 letter, the Veteran’s Visual Impairment Team Program Coordinator reported that the Veteran had a visual field of 5 degrees or less. March 2011 VA treatment records reflect that the Veteran suffered from visual impairment due to retinitis pigmentosa with laser treatment 19 years prior. The VA treatment records reflect that the Veteran has lived with blindness since approximately 1976 when he stopped working due to vision loss. He stated that he began noticing problems with vision loss when doing night maneuvers in service. In an October 2020 affidavit, an acquaintance of the Veteran stated that she knew the Veteran from 1979 until he passed away and that during the entire time she knew the Veteran, he was totally and completely blind without discernable functional vision. She added that the Veteran required the assistance of his wife or daughter for movement from place to place to avoid personal injury that might be caused by his loss of vision. After a review of the pertinent medical and lay evidence, the Board has determined that the Veteran’s eligibility for SMC based on blindness in both eyes having only light perception became factually ascertainable on October 11, 2007. While the Veteran has provided multiple statements indicating that the Veteran has been totally and completely blind since between 1976 and 1979, private treatment records from as recently as June 2007 reflect corrected visual acuity of 20/400 in the left eye, and light perception, but total visual field loss in the right eye. The October 2007 letter from the Veteran’s Program Coordinator indicating that the Veteran had a visual field of 5 degrees or less is the earliest evidence available which indicates that the Veteran has visual field reduced to 5 degree concentric contraction in both eyes, which meets the criteria for SMC as provided by 38 U.S.C. § 1114 (m) as of that date. As the Veteran did not meet the eligibility requirements for SMC under 38 U.S.C. § 1114 (m) prior to October 11, 2007, he was not statutorily eligible for SMC prior to that date, thus the Board cannot assign an effective date earlier than October 11, 2007. The Board acknowledges the appellant’s contention that entitlement to SMC from February 16, 1977 is warranted. However, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Accordingly, the Board finds that an effective date of October 11, 2007 is warranted for the grant of SMC based on blindness in both eyes having only light perception. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, Associate 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.