Citation Nr: 1036312 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 06-34 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an effective date prior to January 24, 2006, for the award of service connection for chronic lymphocytic leukemia (CLL). 2. Entitlement to an effective date prior to January 24, 2006, for the award of service connection for diabetes mellitus Type II with accompanying erectile dysfunction. 3. Entitlement to an effective date prior to January 24, 2006, for the award of special monthly compensation based on loss of creative organ. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By the rating action, the RO granted service connection for chronic lymphocytic leukemia (CLL) associated with herbicide exposure, effective from January 24, 2006. The RO also granted service connection for diabetes mellitus Type II with accompanying erectile dysfunction associated with herbicide exposure, effective from January 24, 2006. In addition, the RO granted entitlement to special monthly compensation (SMC) based on loss of use of creative organ, and, in so doing, assigned an effective date of January 24, 2006. The issue of entitlement to an effective date prior to January 24, 2006, for the award of SMC based on loss of creative organ being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. Claims for service connection for CLL and diabetes mellitus Type II were received by the RO no earlier than January 24, 2006. 3. Prior to January 24, 2006, there was no information or evidence that could be construed as a claim pursuant to which an award of service connection for CLL or diabetes mellitus Type II could have been granted. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 24, 2006, for the award of service connection for CLL have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.816 (2009). 2. The criteria for an effective date earlier than January 24, 2006, for the award of service connection for diabetes mellitus Type II with accompanying erectile dysfunction have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400, 3.816 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duties to the Veteran in a VCAA letter issued in January 2006 with regard to the underlying service connection claim for diabetes mellitus Type II. The Veteran thereafter perfected an appeal as to the effective date assigned. Entitlement to an earlier effective date is a downstream issue from that of service connection (for which a VCAA letter was duly sent in January 2006), thus another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). As concerning the claim for an earlier effective date for the Veteran's service-connected CLL, VCAA notice was not provided to the Veteran prior to the issuance of the April 2006 rating decision. However, a March 2006 letter provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). Also, in July 2006, and specific to his CLL claim, the Veteran was issued notice including eligibility requirements for obtaining an earlier effective date pursuant to Nehmer v. Department of Veterans Affairs, C.A. No. CV-86-6160 (N.D. Cal. Apr. 28, 2006). Thus, the VA letters notified the Veteran of what information and evidence was needed to substantiate his claim, as well as what information and evidence must be submitted by the claimant, and what information and evidence would be obtained by VA. Id. Collectively, the March 2006 and July 2006 letters, as well as the August 2006 Statement of the Case (SOC) have clearly advised the Veteran of what was necessary to substantiate his CLL service connection claim for an earlier effective date. The Board also finds that VA has complied with all assistance provisions of the VCAA. The evidence of record contains the Veteran's medical records reflecting diagnoses of CLL and diabetes mellitus Type II. VA also did not provide the Veteran with examinations in connection with the claims for an earlier effective date (VA provided the veteran with an examination in connection with his claims for service connection). These issues would not warrant an examination, as they do not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C) (West 2002); see also 38 C.F.R. § 3.159(c)(4)(A)-(C) (2009). There is no indication of relevant, outstanding records or documents that would support the Veteran's claims for an earlier effective date. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c) (1)-(3). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue decided herein. Analysis The record indicates that the Veteran served on active duty from November 1965 to November 1968, with verified service in the Republic of Vietnam. In a VA Form 21-526, received January 24, 2006, the Veteran indicated that he was seeking service connection for Type II diabetes. In a letter from Spectrum health a private physician, dated that same day, in pertinent part, indicated that the Veteran had chronic lymphocytic leukemia (CLL). As part of this letter the physician commented that the Veteran's absolute number of lymphocytes was 4993. Private medical records from Spectrum Health, apparently received by VA on January 24, 2006 (the records are not date-stamped), include an August 2005 evaluation/assessment document which notes that the Veteran had lymphocytosis; the possibility of this being CLL was discussed. A November 2005 laboratory report from Quest Diagnostics shows an absolute lymphocytes level of 4993. The report of a VA diabetes mellitus examination conducted in March 2006 shows that the Veteran informed the examiner that he was diagnosed with diabetes mellitus Type II in 2001, and also began to experience erectile dysfunction about that same time. He also provided a history of being diagnosed with CLL in 2004. By a rating action in April 2006, the RO granted service connection for CLL, evaluated as 100 percent disabling, effective January 24, 2006. Service connection was also granted for diabetes mellitus Type II with accompanying erectile dysfunction associated with herbicide exposure, evaluated as 10 percent disabling, also effective from January 24, 2006. Generally, the effective date of an award of a claim is the date of receipt of the application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Ordinarily, if compensation is awarded pursuant to a liberalizing law or VA issue, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. If a claim is reviewed more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. See 38 U.S.C.A. § 5110(g); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997); 38 C.F.R. §§ 3.114, 3.400(p). A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an "informal claim." Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Based upon a review of the evidence on file, the Board finds that the effective date of January 24, 2006, is the earliest effective date assignable for service connection for CLL. This is the date of receipt of the Veteran's claim, which was received more than one year after his separation from service in November 1968. Accordingly, the applicable law establishes that the effective date, generally, shall be no earlier than the date of the claim. 38 U.S.C.A. § 5110. As to whether a claim was received earlier than January 24, 2006, the Board finds no evidence of there being such a claim. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are 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. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992) (citing 38 C.F.R. § 3.1(p)). The Board has reviewed the evidence dated prior to January 24, 2006, and there is no written intent to file a claim for service connection for CLL or diabetes mellitus Type II in the Veteran's claims file. In addition, while the records indicate that the Veteran was diagnosed with CLL in 2004, and diabetes mellitus Type II in 2001, there was nothing that would have placed VA on notice that the Veteran was seeking any benefit in regard to CLL or diabetes mellitus Type II. The mere presence of the medical evidence does not establish an intent on the part of the Veteran to seek entitlement to service connection for a diagnosed disability. Brannon v. West, 12 Vet. App. 32 (1998). Additionally, in MacPhee v. Nicholson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. 459 F. D 1323, 1327 (Fed. Cir. 2006); see 38 C.F.R. § 3.157 (2009). Rather, the Federal circuit found that "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." Id., at 1327; see 38 C.F.R. § 3.157(b)(1) (medical records can serve as an informal claim "when such reports relate to examination or treatment of a disability for which service- connection has previously been established"). In other words, the Federal Circuit held that a medical record would not constitute an informal claim except for when the disability being treated was already service-connected. In light of the foregoing, the Board finds that the Veteran has been awarded the earliest effective date for both CLL and diabetes mellitus provided by law. As the applicable law and regulatory provisions are clear on the issue at hand, the Board concludes that the Veteran's claims for earlier effective dates for the grants of service connection for CLL and diabetes mellitus Type II must be denied. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim. Nehmer Consideration As the result of a class action lawsuit brought by veterans of the Vietnam War and their survivors, the United States District Court for the Northern District of California (District Court), in a May 1989 decision, invalidated the regulation then in effect for adjudicating claims based on Agent Orange exposure, 38 C.F.R. § 3.311a(d) (1989). The District Court also voided all benefit denials that had been made under that section of the regulation. See Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I). Following the 1989 decision of the District Court, the parties entered into a stipulation agreement governing VA's readjudication of all claims that had been denied under the invalidated regulation, which stipulation agreement was made an order of the court. Paragraph 3 of the stipulation and order provided: [a]s soon as a final rule is issued service connecting, based on dioxin exposure, any ... disease which may be service connected in the future pursuant to the Agent Orange Act of 1991, the VA shall promptly thereafter readjudicate all claims for any such disease which were voided by the Court's order of May 3, 1989, as well as adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order. According to Paragraph 5, the effective date for disability compensation based on the readjudication of a claim that was voided by the District Court shall be the date the voided claim was originally filed. The District Court subsequently interpreted the stipulation and order, in light of the 1989 decision, as requiring VA to readjudicate all claims voided in the 1989 decision if the disease was subsequently presumptively service connected, even if the original claim was not expressly based on Agent Orange exposure. The District Court also determined that, if the readjudication resulted in a grant of service connection, the effective date would be the date of the original claim. See Nehmer v. United States Veterans' Administration, 32 F.Supp.2d 1175 (N.D. Cal. 1999) (Nehmer II). In a later decision the United States Court of Appeals for the 9th Circuit (9th Circuit) interpreted Paragraph 3 of the stipulation and order as applying to all claims voided by the District Court in the May 1989 order, as well as all similar claims filed subsequent to the May 1989 order. In addition, if the readjudication of a "similar claim" resulted in an award of benefits, the effective date for the grant of service connection is the date of the original claim. See Nehmer v. United States Veterans' Administration, 284 F.3d 1158, 1161 (9th Cir. 2002) (Nehmer III). Following the decision of the 9th Circuit in 2002, VA issued a regulation at 38 C.F.R. § 3.816 establishing the criteria for determining an effective date for service connection for a disease based on Agent Orange exposure. According to the regulation, if a Nehmer 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 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. A Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." A "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. 38 C.F.R. § 3.816. The Nehmer stipulations were incorporated into a final regulation that became effective on September 24, 2003. See 68 Fed. Reg. 50,966 (Aug. 25, 2003). The new regulation is 38 C.F.R. § 3.816(c) (2), and it allows for the assignment of an effective date prior to the enactment of the liberalizing regulation if the original claim of entitlement to service connection for a "covered herbicide disease" was outstanding between March 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. The 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 for claims received within one year of discharge from service. The Board notes that CLL was not listed as a "covered herbicide disease" under 38 C.F.R. § 3.816(b) (2). An Order of the U.S. District Court for the Northern District of California in Nehmer v Department of Veterans Affairs, C.A. No. C-86-6160 (TEH) (N.D. Cal.), however, requires VA to provide retroactive benefits to Nehmer class members who filed claims for CLL before it was added to VA's presumptive list of diseases associated with exposure to Agent Orange. See Veterans Benefits Administration Fast Letter 06-16 (September 7, 2006). On April 28, 2006, the court issued a Clarification Order directing VA to re-adjudicate the estimated 1,500 class members currently in receipt of compensation for CLL. The court also ordered VA to mail a written outreach notice to each of the approximately 24,000 or more identified potential class members. The outreach notice informed each potential class member that if he or she filed a claim based on CLL prior to October 16, 2003, the individual has the right to request retroactive benefits. Such notice letter was issued to the Veteran in July 2006. The letter explained that to be eligible for retroactive compensation, the evidence of record must show the following: a) the Veteran had a diagnosis of chronic lymphocytic leukemia; b) the Veteran served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and, c) a claim for disability benefits due to CLL was filed or denied between September 25, 1985, and October 16, 2003. While the medical evidence of record reflects a diagnosis of CLL in 2004, and that the Veteran served in Vietnam during the applicable periods, the evidence of record does not reflect that the Veteran filed a claim of service connection for CLL prior to October 16, 2003. In order for the retroactive provisions to be applied, the Veteran must have communicated an intent to claim service connection for CLL between September 25, 1985, and October 16, 2003. There is no communication from the Veteran prior to January 24, 2006, that may be reasonably construed as a claim of service connection for CLL; nor does the Veteran state that a claim was filed prior to such date. 38 C.F.R. §§ 3.151(a), 3.155(a). As the Veteran had not filed a claim prior to October 16, 2003, the retroactive provisions do not apply to the Veteran's service connection claim for CLL. Diabetes mellitus, type II, was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of July 9, 2001. The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). Accordingly, if the Veteran's claim was received between May 3, 1989 and May 8, 2001, the effective date must be the date of the claim. Otherwise, the effective date of the award will be determined in accordance with § 3.114, which addresses effective dates when service connection has been granted based on a liberalizing change in the law (i.e. the inclusion of type II diabetes mellitus as a disease formally associated with exposure to herbicide agents). Under 38 C.F.R. § 3.114, an effective date one year prior to the date of the veteran's claim may be awarded when the evidence shows that the veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue (May 8, 2001) and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114. The eligibility criteria include a diagnosis of the claimed disorder. While the medical evidence of record reflects a diagnosis of diabetes mellitus Type II in 2001, and that, as noted, the Veteran served in Vietnam during the applicable periods, the evidence of record does not reflect that the Veteran filed a claim of service connection for diabetes mellitus Type II prior to May 8, 2001. In order for the retroactive provisions to be applied, the Veteran must have communicated an intent to claim service connection for Type II diabetes mellitus between May 3, 1989 and May 8, 2001. There is no communication from the Veteran prior to January 24, 2006, that may be reasonably construed as a claim of service connection for Type II diabetes mellitus; nor does the Veteran state that a claim was filed prior to such date. 38 C.F.R. §§ 3.151(a), 3.155(a). As the Veteran had not filed a claim prior to May 8, 2001, the retroactive provisions do not apply to the Veteran's service connection claim for Type II diabetes mellitus. In the absence of a claim, or intent to file a claim, for either CLL or diabetes mellitus Type II prior to January 2006, an effective date prior to January 24, 2006, for the grant of service connection for both CLL and diabetes mellitus Type II is not warranted. ORDER An effective date earlier than January 24, 2006, for the grant of service connection for chronic lymphocytic leukemia is denied. An effective date earlier than January 24, 2006, for the grant of service connection for diabetes mellitus Type II is denied. REMAND Also as part of the above-mentioned April 2006 rating decision, entitlement to SMC based on loss of use of creative organ was granted, effective from January 24, 2006. The Veteran was notified of this decision in April 2006. He expressed his disagreement with the effective date assigned in May 2006. The timely filing of a notice of disagreement (NOD) initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). While a SOC was issued in August 2006 - addressing the matters of the effect dates assigned to the service-connected CLL and diabetes mellitus Type II disabilities -- it did not address the matter of an earlier effective date for the SMC grant. 38 C.F.R. § 19.26 (2009). The Board is, therefore, obligated to remand this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue an SOC and notification of the Veteran's appellate rights on the issue of entitlement to an effective date prior to January 24, 2006, for the award of SMC based on loss of creative organ. The Veteran is reminded that to vest the Board with jurisdiction over the issue, a timely Substantive Appeal must be filed. 38 C.F.R. § 20.202 (2009). If the Veteran perfects the appeal as to this issue, the RO should undertake any indicated development action. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs