Citation Nr: 0812196 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-34 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than March 20, 2000, for a 40 percent rating for service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. R. Weaver INTRODUCTION The veteran served on active duty from July 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for diabetes mellitus with hypertension, retinopathy, and erectile dysfunction associated with herbicide exposure with a rating of 20 percent effective February 5, 1988 and a rating of 40 percent effective March 20, 2000. The veteran disagreed with the effective date assigned for the 40 percent rating. This claim was remanded to the RO for further development in March 2007 by the Board. FINDING OF FACT The competent medical evidence does not show that the veteran's service-connected diabetes mellitus required insulin, restricted diet, and regulation of activities prior to March 20, 2000. CONCLUSION OF LAW An effective date earlier than March 20, 2000, for a 40 percent disability rating for diabetes mellitus is not warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400, 3.816, 4.120, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim for an earlier effective date for the 40 percent disability rating for diabetes mellitus was first raised in his September 2002 Notice of Disagreement (NOD). Once a decision awarding service connection, a disability rating, and an effective date has been made, 38 U.S.C.A. § 5013(a) notice has served its purpose and its application is no longer required because the claim for service connection has already been substantiated. Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, once an NOD is received to the rating or effective date, the RO must develop or review the claim further as it deems proper under the regulations. 38 U.S.C.A. § 7105. If the RO's actions do not resolve the disagreement, it must prepare a Statement of the Case (SOC) that includes: (1) a summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed; (2) a citation to pertinent laws and regulations and a discussion of how such laws and regulations affect the agency's decision; and (3) the decision on each issue and a summary of the reasons for such decision. 38 U.S.C. § 7105(d)(1). If the disagreement continues, the RO must also inform the claimant of how he can be awarded an earlier effective date or a higher rating based on the evidence and the law. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Following receipt of the September 2002 NOD, the RO sent a statement of the case in September 2003; correspondence in December 2004; and supplemental statements of the case in November 2004 and October 2007. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained a medical examination in relation to this claim. Therefore, both the notice and duty to assist provisions of the law were satisfied prior to the transfer and certification of the veteran's case to the Board. The veteran originally filed a claim for service connection for diabetes on February 5, 1988. That claim was denied in a rating decision dated April 1988. He submitted a second claim for service connection for diabetes in January 2001. In July 2002, he was awarded service connection for type II diabetes mellitus as a member of a class action lawsuit and assigned a staged rating of 20 percent effective February 5, 1988, and 40 percent effective March 20, 2000. 38 C.F.R. § 3.816; Fenderson v. West, 12 Vet. App. 119 (1999). He asserts that he is entitled to an effective date earlier than March 20, 2000, for the 40 percent rating because he began using insulin sometime between 1988 and November 1991. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DC) identify the various disabilities. 38 C.F.R. Part 4 (2007). Diagnostic Code 7913 provides ratings for diabetes mellitus. Diabetes mellitus that is manageable by restricted diet only is rated 10 percent disabling. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) is rated 40 percent disabling. 38 C.F.R. § 4.119. The effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b). In this case, the effective date of service connection was assigned as February 5, 1988. However, the veteran has disagreed with the date of assignment of a 40 percent rating on March 20, 2000. For increases in disability compensation, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim was received within one year from that date. Otherwise, the effective date of increase shall be the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Therefore, the relevant inquiry in this case is when there was a factually ascertainable increase to a level of disability due to diabetes mellitus that warranted a 40 percent rating. The record shows that the veteran was diagnosed with diabetes mellitus in November 1987. At that time, he was placed on a 2000 calorie ADA diet and prescribed Glucotrol daily. While the medical evidence confirms that he began injecting insulin around October 1988, it does not indicate that he was also advised to avoid strenuous occupational and recreational activities. On the contrary, treatment notes from March 1988, February 1989, and March 1990 show that he was encouraged to exercise. The first record showing a diagnosis of type II diabetes mellitus is a treatment note from the Pensacola VA dated March 20, 2000. However, that record does not show that the veteran was advised by any medical professional to regulate his activities (avoid strenuous occupational and recreational activities). The veteran underwent a VA examination in January 2002. The examiner reviewed that claims file and noted that the veteran was using insulin, on a restricted diet, and had restrictions to his activities because of his multiple medical problems. The examiner did not note that the veteran was advised to regulate his activities prior to March 20, 2000. The competent medical evidence does not show that the veteran's service-connected diabetes mellitus required insulin, restricted diet, and regulation of activities prior to March 20, 2000. There is no medical evidence of record dated prior to March 20, 2000, that demonstrates that any medical professional advised the veteran to avoid strenuous occupational and recreational activities. Therefore, the Board finds that a factually ascertainable increase in disability to the level warranting a 40 percent rating was not shown prior to March 20, 2000. Therefore, the Board finds that the criteria for an effective date earlier than March 20, 2000, for the assignment of a 40 percent rating for diabetes mellitus are not met. The Board finds that the preponderance of the evidence is against the claim for an earlier effective date, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An earlier effective date than March 20, 2000, for a 40 percent rating for service connected diabetes mellitus is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs