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Court Wins

CCK Argues Against Board for Earlier Effective Date for Blindness

April Donahower

March 2, 2021

Updated: November 20, 2023


Summary of the Case

A Navy veteran, who served on active duty from August 1962 to July 1964, filed a claim for bilateral cataracts with VA upon separation.  The claim was received in December 1964 and denied in a January 1965 regional office (RO) rating decision.  However, in that same month, the RO sent a letter notifying the Veteran that his cataracts were service connected, but less than 10 percent disabling and therefore did not merit compensation.  The letter also stated that he was “entitled to necessary treatment by the VA for any service-connected disability.”

In September 1965, with the help of an attorney, the Veteran sent a letter to the RO appealing the 10 percent rating for his eye condition and stating that he would seeking reimbursement pending his upcoming eye surgery.  The RO responded by asserting that, because the Veteran’s attorney had not submitted the proper form to represent him, the Veteran’s letter could not be accepted as a Notice of Disagreement (NOD).  The Veteran went on to file several other claims with VA, all of which were denied.

Finally, in May 2019, the Board granted service connection for left-eye blindness with no light perception at 90 percent and special monthly compensation for the loss of use of this eye with an effective date of April 12, 2007.  This effective date was based on the date of an earlier claim for compensation for blindness the Veteran had filed.

CCK Represents Navy Veteran During Appeal at CAVC

The Veteran then appealed to the Court of Appeals for Veterans Claims (CAVC) with the help of CCK.  The goal of the appeal was to win an earlier effective date for the Veteran, as well as point out the errors made by VA in its communication with the Veteran.  In support of this, CCK made two main arguments.

First, we stated that the Board erred in finding the January 1965 rating decision final, as VA failed to notify the Veteran of both the decision and his appellate rights.  Second, we contended that the Board also erred in finding the January 1965 rating decision final because VA had never informed the Veteran that his September 1965 NOD was invalid.

Ultimately, the Court sided with CCK that the Board’s reasoning was unclear.  It stated that although the Board acknowledged that VA’s letters to the Veteran in 1965 were confusing, it did not address whether these notices adequately informed him of the RO’s adjudication and his rights as an appellate.  The Court set aside the Board’s April 2007 denial of an earlier effective date for left eye blindness and determined that remand was appropriate.

The details of this case can be found in the Court’s full decision.

About the Author

Bio photo of April Donahower

April joined Chisholm Chisholm & Kilpatrick in August of 2016 as an Associate Attorney. She currently serves as the Appellate Supervisor in our Veterans Law practice. April’s practice focuses on representing disabled veterans before the Court of Appeals for Veterans Claims.

See more about April