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Court Wins

CCK Secures 30 Years of Retroactive Benefits for Vietnam Veteran

June 30, 2022
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Case Overview

The Veteran served on active duty in the U.S. Marine Corps from January 1968 to February 1970 as a field artillery cannoneer, including service in Vietnam.  Noted in his enlistment examination report was a visual defect of impaired distance vision in both eyes.  Upon separation, the appellant’s right eye distant vision had not changed, but his left eye distant vision had worsened.

In May 1982, the appellant filed a VA Form 21-526, completing sections of the form necessary to apply for both compensation and pension for his service-connected hearing condition and his non-service-connected blindness.  In an August 1982 VA medical examination, the Veteran was diagnosed with bilateral retinitis pigmentosa and bilateral legal blindness.  The following year, the Veteran was awarded pension based on his non-service-connected retinitis pigmentosa, but VA did not make any decision on disability compensation for the condition.  An award of disability compensation would have been better for the Veteran than an award of pension as it would have resulted in a higher amount of monthly compensation.

Veteran Seeks Service Connection

Decades later, the Veteran reapplied for service connection for a vision condition and, in July 2011, was granted benefits for bilateral blindness (as due to retinitis pigmentosa) at a 100% rating with special monthly compensation.  However, VA only agreed to compensate him from September 16, 2008, not May 1982 when he first requested benefits for his blindness.  The Board of Veterans’ Appeals ruled that the May 1982 application for benefits for blindness was for pension only.  They found that it was not clear that the Veteran was also seeking disability compensation for blindness.

CAVC Rules in Veteran’s Favor

CCK took the case and appealed the Board decision at the Court of Appeals for Veterans Claims.  After reviewing the formal briefs that we filed, the Veterans Court agreed with CCK that the Board had wrongly denied the claim.  The Court noted several errors in the Board’s decision-making process and a failure to provide sufficient reasons or bases for its ruling.  Most importantly, the Court held, “[t]he record contains no evidence that the appellant was seeking compensation for hearing loss and pension for his vision disability.”

As a result, the case was remanded back to the Board for readjudication and ordered to be given “expeditious treatment.”

Board Denies an Earlier Effective Date Again

On remand from the Court, the Board again denied an effective date of May 1982 for disability compensation for blindness.  Despite the Court’s holding that the record did not contain evidence indicating that the Veteran was seeking compensation for hearing loss and pension for his vision disability, the Board found that “the Veteran intended and believed that he was applying for non-service-connected pension for bilateral blindness and service-connected compensation for hearing loss.”  Therefore, it again ruled that the May 1982 application for benefits was not a claim for disability compensation for blindness.

CCK Helps Veteran Reach Agreement with VA

CCK appealed the Board’s new decision to the Court.  This time, we reached an agreement with VA without having to file a single formal brief.   VA agreed to pay the Veteran disability compensation for blindness back to May 1982 in exchange for dismissing the appeal.  This means that the Veteran is potentially entitled to almost 30 years’ worth of retroactive benefits.