Citation Nr: 21041465 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-06 071 DATE: July 9, 2021 ORDER Entitlement to an effective date earlier than August 17, 2006 for the award of service connection for a left eye disability is denied. Entitlement to an effective date earlier than August 1, 2006 for dependency status in a compensation award is denied. FINDINGS OF FACT 1. No claim (formal or informal) for a left eye disability was received following the unappealed October 1974 and July 2004 rating decisions until receipt of the Veteran's claim on August 17, 2006; and, service connection was established from that date. 2. The Veteran became eligible for additional allowance for a dependent on August 1, 2006, and compensation was established from that date. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 17, 2006 for the award of service connection for a left eye disability are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to August 1, 2006 for dependency status in a compensation award are not met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Air Force from July 1954 to August 1964, with additional service in the Army National Guard. He died in May 2019 and the appellant, his spouse, was granted substitution in August 2020. The appeal originates from September 2011 and December 2013 decisions of Department of Veterans Affairs (VA) Regional Offices. The Veteran and the appellant appeared for a hearing before the undersigned in August 2015. The matter was remanded in October 2015, December 2017, December 2020, and March 2021 to obtain the October 1974 rating decision that initially denied service connection for a left eye disability and all correspondence between VA and the Veteran from 1974 to 1976 from the Oakland and San Diego Regional Offices. As discussed in the December 2017 and December 2020 Remands, the October 1974 decision was obtained, the Oakland Regional Office (RO) responded that no records were available, and the San Diego RO responded that no records were available for 1974. The appellant was provided notice in September 2020. Following the March 2021 Remand that requested records from the San Diego RO for 1975 to 1976, the RO responded that a notice of disagreement (NOD) with the October 1974 decision was not located, for which the appellant was provided notice in May 2021. Though the response did not specify whether correspondence other than an NOD was extant, such is unnecessary as the lay reporting clarifies that no evidence or argument was submitted for the left eye during this period (see discussion below.) There has been substantial compliance with the Remand directives. 1. Entitlement to an effective date earlier than August 17, 2006 for the award of service connection for a left eye disability. The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran claimed an earlier effective date for his left eye disability back to 1974 when he first filed a claim of service connection. An October 1974 rating decision denied the claim. The Veteran and the appellant conceded that they received notice of the adverse decision. They similarly concede that they did not seek to refile the claim until 2004. See August 2015 Hearing Transcript; May 2018 Statement. The record does not reflect receipt of an NOD nor new and material evidence within one year of the decision. The decision therefore became final. Correspondence regarding a left eye disability was not thereafter received until the Veteran filed a formal claim in January 2004 for vision loss in the left eye. A July 2004 rating decision continued the denial for a left eye disability for which notification was provided that month. The Veteran did not appeal the decision nor was new and material evidence received within one year. As such, it became final. An informal claim for a left eye disability was then received on August 17, 2006. The Veteran was awarded service connection from that date. Consideration is given to the lay assertions that an effective date to October 1974 is warranted. After he refiled his claim in January 2004, the Veteran received a development letter in March 2004 specifying that his claim was previously denied and that new and material evidence was necessary to reopen it. The Veteran did not reference an unresolved appeal for the left eye proximate to this time or many years thereafter, even when he and the appellant appeared at a Board hearing in July 2010 that addressed new and material evidence to reopen his claim. The Veteran's assertion (interpreted liberally) that he appealed the October 1974 decision was not raised until approximately 2011, nearly 40 years following the period in question and a number of years after refiling the claim. Though he and the appellant described being discouraged and focusing on other matters following the initial denial in 1974, the Board reasonably believes that an unresolved appeal would have been raised earlier. Moreover, the lay reporting itself confirms that an appeal for VA purposes was never actually initiated. The Veteran and appellant described receiving notice of the October 1974 decision and bringing the letter in-person to the Oakland RO, at which time they were informed that the RO could not take further action due to the record being closed. See May 2018 Statement. They did not report filing an NOD or submitting additional evidence; to the contrary, they stated that they took no further action until 2004. This is supported by the August 2015 testimony in which the appellant acknowledged that an appeal was not undertaken in 1974 and that the present appeal was essentially being pursued on equitable grounds. Although the Board is sympathetic to the appellant, the facts simply do not establish entitlement to the benefit sought. Accordingly, an effective date earlier than August 17, 2006 for the award of service connection for a left eye disability is not warranted. 2. Entitlement to an effective date earlier than August 1, 2006 for dependency status in a compensation award. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4. The effective date for additional compensation for a dependent will be the latest of the following: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) date of commencement of veteran's award. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. The Veteran became eligible for additional compensation for a dependent from August 1, 2006, the date he reached a combined evaluation of 30 percent for his service-connected disabilities. He did not have a service-connected disability rated at least 30 percent disabling prior to that date. As previously discussed, an earlier effective date for his left eye disability is not warranted. Therefore, as a matter of law, an effective date earlier than August 1, 2006 for additional compensation for a dependent cannot be established, and the claim must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.