Citation Nr: 0502761 Decision Date: 02/04/05 Archive Date: 02/15/05 DOCKET NO. 04-08 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an effective date prior to May 24, 1993, for service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from September 1970 to March 1972 and he served in the Republic of Vietnam from February to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a February 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which granted service connection for diabetes mellitus, presumptively as due to inservice exposure to Agent Orange, effective May 24, 1993. FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam from February to December 1971. 2. The veteran's January 1985 claim for service connection for residuals of inservice exposure to herbicides was denied in June 1985. No appeal was taken from that decision. 3. The veteran's claim for service connection for diabetes mellitus was received on May 24, 1993. CONCLUSION OF LAW An effective date prior to May 24, 1993, for service connection for diabetes mellitus is not warranted. 38 C.F.R. § 3.816 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) became effective November 9, 2000. Implementing regulations were created and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003), which essentially eliminate the requirement of submitting a well- grounded claim and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003) (implicitly holding that RO decisions and statements of the case may satisfy this requirement). Recently, the United States Court of Appeals for Veterans Claims (Court) revisited the notice requirements imposed upon VA by the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) (withdrawing it's decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004) (Pelegrini I)). The Court addressed both the timing and content of these notice requirements. Id. at 120 21. Even more recently, in VAOPGCPREC 7-2004 (July 16, 2004), VA's Office of General Counsel (GC) undertook to explain the holding of Pelegrini II. Initially, GC noted that the Court had described the statements in its opinion as to the timing and content of VCAA notification as "holdings," but, according to GC, the issues to which these "holdings" related were not necessary to the disposition of the case. VAOPGCPREC 7-2004, at 2. Consequently, GC implied that these statements constituted dicta rather than binding holdings. Id. (citing dissenting opinion in Pelegrini II and other cases characterizing Court statements as dicta). In the case at hand, however, even if the Pelegrini II Court's statements as to the timing and content of VCAA notice were binding holdings, the RO nonetheless complied with them. The Court in Pelegrini II held that a VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004) (Pelegrini II). The Court in Pelegrini II also held that VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in his or her possession that pertains to the claim. Pelegrini II, at 120 - 21. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1) (2003). Id. According to VAOGCPREC 7-2004 Pelegrini II holding did not require that VCAA notification contain any specific "magic words," and that it can be satisfied by a Statement of the Case (SOC) or Supplemental SOC (SSOC) as long as the document(s) meets the four content requirements listed above. In this case, the veteran was not formally notified as to the respective VCAA rights, duties, and responsibilities but was informed of the applicable VCAA law and regulations in the February 2004 statement of the case (SOC). Here, though, a remand for this reason is unnecessary because any defect with respect to the timing of the VCAA notice was mere harmless error because the veteran has been provided with every opportunity to submit evidence and argument in support of the claim. Indeed, he had time to identify and/or submit additional supporting evidence after issuance of the SOC (containing the VCAA regulations). However, at the May 2004 hearing before the undersigned traveling Veterans Law Judge, sitting at Cheyenne, Wyoming, the veteran testified that private clinical records which would verify that he was first diagnosed as having diabetes in September or October 1982 were no longer available (page 5 of that transcript) and that he did not have in his possession any additional relevant records or evidence (page 9). In a precedent opinion, VA's General Counsel addressed the issue of the "fourth element" of the VCAA notice as outlined by the Court in Pelegrini I. See VAOPGCPREC 1-04 (Feb. 24, 2004). The "fourth element" language in Pelegrini I is substantially identical to that of Pelegrini II, requiring VA under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) to request the claimant provide any evidence in his or her possession that pertains to the claim. Id. The General Counsel's opinion held that this language was obiter dictum and not binding on VA. See VAOPGCPREC 1-04 (Feb. 24, 2004); see also Pelegrini II, 18 Vet. App. 112, 130 (2004) (Ivers, J., dissenting). In addition, the General Counsel's opinion stated VA may make a determination as to whether the absence of such a generalized request, as outlined under § 3.159(b)(1), is harmful or prejudicial to the claimant. For example, where the claimant is asked to provide any evidence that would substantiate his or her claim, a more generalized request in many cases would be superfluous. Id. The Board is bound by the precedent opinions of VA's General Counsel, as the chief legal officer for the Department. 38 U.S.C.A. § 7104(c). In sum, the Board finds that the veteran was otherwise fully notified of the need to give VA any evidence pertaining to his claims. As for the other three content requirements of the VCAA notice cited in Pelegrini, they, too, have been satisfied. The veteran's service medical records (SMRs) are on file as are his VA clinical records. The veteran testified in support of his claim at the May 2004 travel board hearing and from that testimony it does not appear that any relevant private clinical records exist. Moreover, there does not appear to be any factual dispute in this case. Accordingly, no further development is required to comply with the VCAA or the implementing regulations. And the appellant is not prejudiced by the Board deciding the appeal without first remanding the case to the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Analysis The veteran testified in May 2004 that he was first diagnosed as having diabetes mellitus, and given medication for that disorder, when he sought evaluation at his employer's clinic in September or October 1982 but that those records no longer exist (page 5 of that transcript). In January 1985 the veteran claimed service connection for exposure to Agent Orange and reported that he had had an examination in September 1984 at a VA facility in Denver, Colorado. The RO attempt to locate such a record but was informed, via VA Form 10-7131, that there was no record of the veteran's having had an Agent Orange examination and he was not scheduled for one in the "upcoming future." The veteran was then scheduled for a VA Agent Orange examination. That examination was conducted in April 1985, at which time it was noted that he had diabetes. This is the earliest clinical evidence on file reflecting that the veteran had diabetes mellitus. A June 1985 rating decision denied service connection for residuals due to exposure to Agent Orange. Diabetes mellitus was not specifically listed as a disorder for which service connection was denied. Subsequent VA clinical records in the 1980s and early 1990s continue to note that the veteran had diabetes mellitus. In VA Form 21-4138, Statement in Support of Claim, received on May 24, 1993, the veteran, in pertinent part, claimed service connection for diabetes. The veteran was notified by letter of March 31, 1994, of a March 12, 1994, rating decision that denied service connection for diabetes mellitus. However, no appeal was taken from that rating decision and, so, it became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.1103. After the veteran filed an application to reopen the claim for service connection for diabetes mellitus in September 1999, he was notified in February 2000 of a rating decision that month which denied reopening of the claim. The veteran again applied to reopen the claim in November 2000, following which the February 2003 rating decision being appealed granted service connection for diabetes mellitus, as associated with inservice herbicide exposure, and assigned a 20 percent disability rating, both effective May 24, 1993. At the May 2004 travel board hearing the veteran and his representative cited, at page 4, Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal.) as providing for a legal basis for an effective date prior to May 24, 1993. However, the holding in that case has now been incorporated in regulatory form at 38 C.F.R. § 3.816 (2004), Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure, which provides, in pertinent, as follows: (a) Purpose. This section states effective-date rules required by orders of a United States district court in the class-action case of Nehmer v. United States Department of Veterans Affairs, No. CV-86- 6160 TEH (N.D. Cal.). (b) Definitions. For purposes of this section- (1) Nehmer class member means: (i) A Vietnam veteran who has a covered herbicide disease; (2) Covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. Those diseases are: (i) Type 2 Diabetes (Also known as type II diabetes mellitus or adult-onset diabetes). (c) Effective date of disability compensation. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. (3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. (e) Effect of other provisions affecting retroactive entitlement-- (1) General. If the requirements specified in paragraphs (c)(1) or (c)(2) ... of this section are satisfied, the effective date shall be assigned as specified in those paragraphs, without regard to the provisions in 38 U.S.C. 5110(g) or § 3.114 prohibiting payment for periods prior to the effective date of the statute or regulation establishing a presumption of service connection for a covered herbicide disease. (g) Awards covered by this section. This section applies only to awards of disability compensation or DIC for disability or death caused by a disease listed in paragraph (b)(2) of this section. 38 C.F.R. § 3.816 (2004). The veteran is a "Nehmer class member" within the meaning of 38 C.F.R. § 3.816(b)(1) and has a "Covered herbicide disease" within the meaning of 38 C.F.R. § 3.816(b)(2), i.e., diabetes mellitus. The effective date for the regulation which added diabetes mellitus as a disease presumptively due to inservice exposure to herbicides is May 8, 2001. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed.Cir. 2002). Here, the veteran's January 1985 claim for service connection for residuals of exposure to Agent Orange did not reflect an intent to claim service connection for diabetes, within the meaning of the last sentence of 38 C.F.R. § 3.816(c)(1). Moreover, his January 1985 claim was denied by the RO in June 1985 and, so, there was no denial between September 25, 1985, and May 3, 1989, within the meaning of 38 C.F.R. § 3.816(c)(1). Accordingly, an earlier effective date is not warranted under 38 C.F.R. § 3.816(c)(1). In this case the current May 24, 1993, effective date has been set in accordance with the provisions of 38 C.F.R. § 3.816(c)(2). Specifically, if a VA claim was pending on May 3, 1989, or, as in this case, was received between that date (in this case it was received on May 24, 1993) and the May 8, 2001, effective date of the regulation making diabetes mellitus a disease presumptively due to inservice herbicide exposure, the effective date is the latter of the date the claim was received (i.e., May 24, 1993) or the date the disability arose (allegedly in 1982), unless, under 38 C.F.R. § 3.816(c)(3), the claim was received within one year after separation from service. Here, even the veteran's own testimony was that he first developed symptoms of diabetes consisting of frequent episodes of thirst and frequent urinary urgency and that diabetes was first diagnosed in 1982. So, there could not have been any claim for service connection within one year of his service discharge in 1972. Moreover, even assuming, without conceding, that diabetes first arose in 1982, under 38 C.F.R. § 3.816(c)(2), the proper effective date is not the date the disability arose but the later of either when it arose or when the claim was filed, i.e., May 24, 1993. "When determining the effective date of an award of compensation benefits, the BVA is required to review all the communications in the file, after the last final disallowance of the claim, that could be interpreted to be a formal or informal claim for benefits. See, e.g., Servello, 3 Vet. App. at 198." Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155(a). The veteran's VA outpatient treatment records prior to May 1993 do not reflect an intent to claim service connection for diabetes and, thus, cannot be an informal claim under 38 C.F.R. §§ 3.155 and 3.157. See Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993) merely requesting, or claiming, and receiving VAOPT is not the same as requesting compensation benefits). Likewise, his VA hospitalization in November 1990 and repeated VA examinations in the 1980s and early 1990s do not reflect an intent to claim entitlement to service connection for diabetes and, so, are also not informal claims for the purpose of an earlier effective date. In sum, as explained above, the fact that the veteran filed a claim for residuals of inservice exposure to herbicides in January 1985, which was denied in June 1985, does not provide a basis for an effective date prior to May 24, 1993, because it does not fall within the parameters of the provisions in 38 C.F.R. § 3.816 providing for an earlier effective date. While the Board has carefully considered the arguments advanced on appeal, there is no basis for favorable action under the circumstances. ORDER An effective date prior to May 24, 1993, for service connection for diabetes mellitus is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs