Citation Nr: 21022423 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-30 557 DATE: April 15, 2021 ORDER An effective date prior to September 16, 2008 for service connection for bilateral blindness due to retinitis pigmentosa with cataract extraction, implants and glaucoma is denied. FINDINGS OF FACT 1. A claim for entitlement to service connection for blindness was not identified in the VA Form 21-526 that was first received on May 24, 1982 as the intent of the Veteran’s May 1982 claim for benefits, to include with consideration of the evidence prior to and supporting evidence submitted with this claim form, was to apply for nonservice-connected pension for bilateral blindness and service-connected compensation for hearing loss. 2. The Veteran’s initial claim for service connection for a vision condition was received on September 16, 2008, which is more than one year after his discharge from active service.   CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 16, 2008 for service connection for bilateral blindness due to retinitis pigmentosa with cataract extraction, implants and glaucoma have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1968 to February 1970. This matter is on appeal to the Board from a July 2011 rating decision. He provided testimony to the undersigned Veterans Law Judge at a Central Office hearing in December 2018. A transcript is in the record. In May 2019, the Board denied an effective date prior to September 16, 2008 for the award of service connection for bilateral blindness due to retinitis pigmentosa with cataract extraction, implants, and glaucoma. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims, which, in July 2020, issue a Memorandum Decision, vacating the May 2019 Board decision and remanding the Veteran’s claim back to the Board for readjudication and to provide adequate reasons and bases. In response to a November 2020 letter from the Board providing the Veteran with 90 days to submit any additional argument or evidence, the Veteran responded later that month by marking a check box indicating that he did not have any additional evidence or argument to submit and waived any remaining time to do so. *** The Veteran contends that he is entitled to an effective date prior to September 16, 2008 for service connection for his bilateral blindness due to retinitis pigmentosa with cataract extraction, implants, and glaucoma. He argues that the VA Form 21-526 Veterans Application for Compensation or Pension he submitted and was received by VA on May 24, 1982 should have been construed as a claim for service-connected compensation benefits for blindness instead of merely a claim for non-service connected pension benefits. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to in this section. A “claim” is defined broadly to include 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). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). In 1982 (as well as today), 38 C.F.R. § 3.151(a) states that “[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 facts in this case show that, in September 2008, the Veteran’s representative submitted a claim on behalf of the Veteran for service connection for disabilities that included a “vision condition”. This claim was date-stamped as received by VA on September 16, 2008. Subsequently, entitlement to service connection for bilateral blindness due to retinitis pigmentosa with cataract extraction, implants and glaucoma with an evaluation of 100 percent disabling was granted in a July 2011 rating decision. This decision assigned an effective date of September 16, 2008, based on the date of receipt of the claim for service connection. The Veteran submitted a timely notice of disagreement with the effective date, thereby initiating the current appeal. Prior to submitting the claim that resulted in service connection for his bilateral blindness due to retinitis pigmentosa, the record shows that VA received a claim for service connection for hearing loss from the Veteran in March 1970. No other disability was cited in this claim, and the Veteran does not contend otherwise. Entitlement to service connection for bilateral hearing loss with a noncompensable rating was granted in an August 1970 rating decision. The record confirms that the Veteran submitted a VA Form 21-526 Veterans Application for Compensation or Pension that is both signed and date-stamped as received on May 24, 1982. In relevant part, in Section 24, where he was asked to provide the “nature of sickness, disease, or injuries for which this claim is made and date each began”, the Veteran listed “eye’s NSC blind”, and “hearing SC”. He did not provide the date that either disability began, and no other disabilities were listed. In Section 26, when asked if he received any treatment while in service, the Veteran wrote “hearing” which he said was treated in late 1968. There was no mention of a visual disability or any other medical problems. In Section 39, which was reserved for remarks, it states “Comp or Pension”. There is also a photocopy of this form in the claims file in which Section 39 is empty. This form has the same signature from the Veteran dated May 24, 1982. It has been entered into the record as having been received on January 12, 1983, but it does not have a legible date-stamp. A cover sheet indicates that this is a copy of the original document received in the Veteran’s claims file. The Veteran submitted a May 1982 letter (05/19/1982 Third Party Correspondence) from his VA doctor with his original May 1982 VA Form 21-526. The letter states that the Veteran is legally blind. It does not state when the blindness began or mention active service. Other evidence in the claims file at the time of the May 1982 letter included the Veteran’s service treatment records. The December 1967 entrance examination noted a visual defect. His distant vision was 20/50 for the right eye and 20/30 for the left eye. A Report of Medical History completed at this time shows the Veteran answered “yes” to a history of wearing glasses or contacts. He explained that he wore reading glasses. At the February 1970 discharge examination, the Veteran was again noted to have defective visual acuity that was not otherwise disqualifying. His visual acuity was 20/50 for the right eye and 20/40 for the left eye. The remainder of the Veteran’s service treatment records are negative for complaints or treatment for his eyes and vision. They do not include a diagnosis of retinitis pigmentosa, glaucoma, or any other disease of the eyes. After receipt of the May 1982 VA Form 21-526, the Veteran was afforded a VA examination of his hearing in August 1982. The Veteran was also afforded a general medical examination in August 1982, which included an eye examination. The diagnoses included retinitis pigmentosa, both eyes, and legal blindness, both eyes, secondary to visual field contraction. The examination report does not mention active service, state when the eye disability began or otherwise relate the eye disability to service, nor does it include any history or contention from the Veteran that purports to do so. A December 1982 rating decision notes jurisdiction based on a claim for increase, and the issue was non-service connected pension. Based on the results of the VA examination, the evaluation for the Veteran’s hearing loss remained zero percent. His non-service connected retinitis pigmentosa was considered 100 percent disabling. His combined service-connected rating and non-service connected rating was 100 percent disabling. The Veteran was notified that entitlement to a non-service connected pension had been granted in a January 1983 letter. The letter further noted that the pension could not be paid until he submitted an income statement. In May 1983, the Veteran received a notice letter informing him that his claim for disability pension had been approved and provided him the monthly payment amount. He was also informed that service connection had been established for impaired hearing at zero percent. This letter included the Veteran’s appellate rights. The next communication from the Veteran after the May 1983 letter appears to be the September 16, 2008 claim. *** The Board has review reviewed the record with the concerns of the July 2020 Memorandum Decision in mind, to include the three main points raised. In particular, it finds that evidence post-dating the May 1982 is not need to support the finding made below and agrees with the Court that the fact retinitis pigmentosa was not a disability eligible for service connection is irrelevant to the central question of whether the Veteran intended to file a claim for service connection for his vision disability. Regarding the third point, the Board makes clear findings of fact and explains why in the paragraphs that follow. The Board has considered the Veteran’s argument that he is entitled to an earlier effective date of May 24, 1982, based on the Veteran’s Application for Compensation or Pension (VA Form 21-526) filed on that date. Generally, VA must develop all issues raised upon a liberal and sympathetic reading of a claim. See Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007) ; Szemraj v. Principi, 357 F.3d 1370, 1376 (Fed. Cir. 2004) (explaining that when reviewing an application for benefits, VA must give it “a sympathetic reading” so as to “determine all claims for recovery supported by a liberal construction”). Moreover, a claim by a Veteran for pension “may be” treated as a simultaneous claim for service connection and vice versa. 38 C.F.R. § 3.151(a). Determining whether a claim for pension is a simultaneous claim for service connection depends on the contents of the application for benefits and the supporting evidence submitted with the application. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997) (citing Willis v. Brown, 6 Vet. App. 433, 435 (1994)). In Stewart v. Brown, the United States Court of Appeals for Veterans Claims explained that the phrase “may be considered” in 38 C.F.R. § 3.151(a) is discretionary rather than mandatory, and further clarified that VA should consider a veteran’s claim for pension as a claim for compensation where VA is on notice that the appellant has a well-supported claim and might be eligible for either benefit. Id. at 18-19. In Stewart, the Court considered factors, such as where portions of the application directly relating to compensation were left blank and did the claimant have at least some understanding of the application process for disability compensation. Id. at 19-20. The Board will review and utilize these factors in its analysis. The Board determines as a finding of fact that the intent of the Veteran’s May 1982 claim for benefits was to apply for nonservice-connected pension for bilateral blindness and service-connected compensation for hearing loss. In reaching this decision, the Board looks to the copy of the Veteran’s VA Form 21-526 that is date stamped as received by VA on May 24, 1982 includes the notation “Comp or Pension” in the remarks section. As this notation is not included on the photocopy of the VA Form 21-526 that was received in January 1983, it appears to have been added sometime on or after the original was received on May 24, 1982. The Board is unable to determine if this was added by the Veteran, his representative, or a VA employee at the request of the Veteran, or if it was added to the form by a VA employee without the knowledge of the Veteran. The Board is also unable to determine the date that this notation was added and observes that since the January 1983 photocopy does not include the notation, it is possible it was added after that date, meaning it would have been added after consideration of the Veteran’s claim in December 1982. However, the Board finds that this notation does not change the outcome of this decision. In fact, it appears that the RO did consider both compensation and pension, in that it provided the Veteran a VA examination of his already service connected hearing loss (since the August 1970 determination), discussed this disability, and continued the zero percent rating in the December 1982 rating decision and May 1983 notice letter. In this case, to include with a sympathetic reading, the May 1982 application for benefits, plus the supporting documentation received at that time or prior to this application, that makes it clear that the Veteran intended to apply for service connection for blindness. The Veteran did not state he was seeking service connection, and he responded almost exclusively to those sections of the claim form pertaining to nonservice-connected pension. This Board finds that the way in which the form was completed tends to show the Veteran’s intentions at that time. For example, he did not provide a beginning date for his blindness as requested by the form, he reported receiving treatment for his hearing loss in service but not for his vision, he stated “none” or “N/A” in the sections about treatment since service, and he then completed the income section, which is relevant only to a claim for non-service connected pension. Moreover, the Veteran did not indicate or imply any relationship between his cited disability and service, which is the basis of entitlement to service connection benefits. Rather, the Veteran stated that his disability was “NSC”, which stands in contrast to him stating that his hearing loss was service connected. The natural, reasonable inference/interpretation would be that he was drawing a distinction between these two disabilities. Indeed, as noted, the Veteran was already service-connected for hearing loss since the August 1970 determination. The Board finds that such evidence tends to show that the Veteran had at least a basic understanding of the application process for disability compensation. In sum, the Veteran’s words and actions tend to indicate a clear belief that the benefit sought was non-service-connected pension for bilateral blindness. Similarly, the medical evidence received in conjunction with the claim does not relate the Veteran’s retinitis pigmentosa to service or include any history from the examiners or the Veteran that would place the beginning of his disability in service or otherwise suggest a relationship between his disability and service. In other words, the Board finds that the Veteran’s May 1982 claim did not put VA on notice that the Veteran was seeking service-connected compensation benefits for blindness. Although the benefit sought need not be specific, it must be identified. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); Stewart v. Brown, 10 Vet. App. 15, 18 (1997). Further, although VA must interpret a claimant’s submissions broadly, it is not required to conjure up issues not raised by claimant, nor anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In this case, even with consideration of the “Comp or Pension” notation, this must be read in conjunction with the Veteran’s statement that his blindness was “NSC”, which is an abbreviation for non-service connected. In sum, a sympathetic reading of the record indicates that the Veteran intended and believed that he was applying for nonservice-connected pension for bilateral blindness and service-connected compensation for hearing loss. The May 1982 VA Form 21-526 specifies his eye claim as “NSC” (or nonservice-connected pension) and his hearing claim as “SC” (service-connected compensation). Based on this specification, it is clear that, much like the claimant in Stewart, the Veteran understood both what he was applying for and that the two claims were for different VA benefits. In other words, by differentiating between “eyes NSC blind” and “hearing SC,” the Veteran demonstrated an understanding of the application process and an intention to apply for different benefits, albeit on the same form. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) (“Fact-finding in veterans cases is to be done by the Board.”)); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc..”); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). In this case, for the reasons discussed above, the Board determines as a finding of fact that that the intent of the Veteran’s May 1982 claim for benefits was unmistakably to apply for nonservice-connected pension for bilateral blindness and service-connected compensation for hearing loss. Therefore, as service connection for blindness was not identified as the benefit sought in the May 24, 1982 claim, VA was not required to interpret the Veteran’s claim as raising this issue. The Veteran’s initial claim for service connection for a vision condition is the one that was received on September 16, 2008 and resulted in the July 2011 grant of service connection for bilateral blindness due to retinitis pigmentosa with cataract extraction, implants and glaucoma. As September 16, 2008 is more than one year after the Veteran’s February 1970 discharge from active service, it is the earliest possible effective date that can be assigned for his disability. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.