Citation Nr: 0814378	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  05-40 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date prior to June 6, 2005 for 
the grant of service connection for peripheral vascular 
disease, left lower extremity (also claimed as venous 
insufficiency).


REPRESENTATION

Veteran represented by:  Texas Veterans Commission


ATTORNEY FOR THE BOARD

Catherine Cykowski, Associate Counsel





INTRODUCTION

The veteran had active duty service from January 1943 to 
February 1946, from January 1954 to January 1956 and from 
April 1961 to July 1967.

This matter comes before the Board of Veterans Appeals 
(Board) on appeal from a March 2003 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  


FINDINGS OF FACT

1.  A March 2002 rating decision denied service connection 
for poor circulation secondary to diabetes mellitus.  The 
veteran expressed disagreement with the March 2002 rating 
decision, but a statement of the case was not issued.     

2.  A claim for service connection for poor circulation 
secondary to diabetes was received on April 4, 2002.  The 
claim was denied in an August 2002 rating decision.    

3.  A claim for service connection for loss of circulation 
secondary to service-connected diabetes was received on 
November 14, 2002.  A March 2003 rating decision denied 
service connection for venous insufficiency and stasis 
dermatosis of the bilateral lower extremities 

4.  Evidence of a diagnosis of venous insufficiency of both 
lower extremities was first shown on VA examination on 
February 10, 2003.     

5.  An August 2005 rating decision granted service connection 
for peripheral vascular disease, left lower extremity, and 
assigned an effective date of June 6, 2005.   




CONCLUSION OF LAW

An effective date of February 10, 2003 is warranted for 
service connection for peripheral vascular disease, left 
lower extremity.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 
3.400 (2007).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the Veterans Claims Assistance Act of 
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002), became law.  Regulations 
implementing the VCAA were then published at 66 Fed. Reg. 
45,620, 45,630-32 (August 29, 2001) and are now codified at 
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007).  The 
VCAA and its implementing regulations are applicable to this 
appeal.

The duty to notify under the VCAA requires VA to notify the 
claimant and the claimant's representative, if any, of the 
information and medical or lay evidence that is necessary to 
substantiate the claim.  In Pelegrini v. Principi (Pelegrini 
II), 18 Vet. App. 112, 119-20 (2004), the Court specifically 
held that the VCAA requires VA to provide notice that informs 
the claimant of any information and evidence not of record 
(1) that is necessary to substantiate the claim, (2) that VA 
will seek to provide, and (3) that the claimant is expected 
to provide.  In what can be considered a fourth element of 
the requisite notice, the Court further held that, under 38 
C.F.R. § 3.159(b), VA must request the claimant to provide 
any evidence in his possession that pertains to the claim.  
Id. at 120-21.  The Court has indicated that notice under the 
VCAA must be given prior to an initial unfavorable decision 
by the agency of original jurisdiction.  Id.

The VCAA and its implementing regulations provide that VA 
will assist a claimant in obtaining evidence necessary to 
substantiate a claim.  Under these provisions, VA is required 
to obtain service medical records and relevant VA healthcare 
records and must make reasonable efforts to help the veteran 
obtain other relevant medical records.  The duty to assist 
also requires VA to provide the claimant with a medical 
examination or a medical opinion when such an examination or 
opinion is necessary to make a decision on a claim.  38 
U.S.C.A. § 5103A(d) (West 2002);  38 C.F.R § 3.159 (2007). 

The Court has mandated that VA ensure strict compliance with 
the provisions of the VCAA.  Quartuccio v. Principi, 16 Vet. 
App. at 183 (2002).  In this case, as explained below, VA has 
strictly complied with the VCAA by providing the veteran 
adequate notice and assistance with regard to the claims on 
appeal.  Accordingly, the veteran is not prejudiced by the 
Board's decision to proceed with the disposition of this 
appeal.  Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

During the pendency of this appeal, on March 3, 2006, the 
Court issued a decision in the consolidated appeal of 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which 
held that the VCAA notice requirements of 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements 
of a service connection claim.  Those five elements include:  
1) veteran status; 2) existence of a disability; 3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  The Court held that upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 
5103(a) and 38 C.F.R.    
§ 3.159(b) require VA to review the information and the 
evidence presented with the claim and to provide the claimant 
with notice of what information and evidence not previously 
provided, if any, will assist in substantiating or is 
necessary to substantiate the elements of the claim as 
reasonably contemplated by the application.  Dingess/Hartman 
at 488.  Additionally, this notice must include notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
Id. 

The veteran's claim for an earlier effective date arises from 
a September 2005 notice of disagreement with the August 2005 
rating decision that granted service connection for 
peripheral vascular disease of the left lower extremity and 
assigned an effective date of June 9, 2005.  In letters dated 
in March 2006 and October 2007, the RO provided the veteran 
with notice of how VA determines effective dates.  

The Board finds that the duty to notify has been satisfied.  
All the VCAA requires is that the duty to notify is 
satisfied, and that appellants be given the opportunity to 
submit information and evidence in support of their claims.  
Once this has been accomplished, all due process concerns 
have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996).

The Board also finds that the duty to assist has been 
satisfied.  The RO made reasonable efforts to assist the 
veteran in obtaining the relevant records identified by him 
with respect to his service connection claim.  Additional 
evidence was not necessary to decide the veteran's claim for 
an earlier effective date. VA has not obtained records in 
connection with the claim for an earlier effective date; 
however, the veteran has not identified any records that 
would be relevant to this claim.   

II.  Analysis of Claim

A. Legal Criteria

Except as otherwise provided, the effective date of an 
evaluation and award of pension, compensation, or dependency 
and indemnity compensation based on an original claim, a 
claim reopened after final disallowance, or a claim for 
increase will be the date of receipt of the claim or the date 
entitlement arose, whichever is later.  38 U.S.C.A. § 5110 
(West 2002); 38 C.F.R. § 3.400 (2007).

The date of receipt of a claim is the date on which a claim, 
information, or evidence is received by the VA.  38 C.F.R. § 
3.1(r) (2007).  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); 3.155 (2007); Brannon v. West, 12 Vet. App. 32, 
34-5 (1998).  To determine when a claim was received, the 
Board must review all communications in the claims file that 
may be construed as an application or claim.  See Quarles v. 
Derwinski, 3 Vet. App. 129, 134 (1992).

In Ellington v. Nicholson, No. 04-0403 (U.S. Vet. App. July 
25, 2007), the Court held that an effective date assigned for 
a secondarily service-connected disability does not relate 
back to the filing date of a prior claim for the antecedent 
disability.  The Court held that the effective date for a 
secondarily service-connected condition is based solely on 
the date VA received the claims for secondary service 
connection.  Ellington v. Nicholson slip op. at 5-6. 

B.  Analysis 

A claim for service connection for diabetes mellitus was 
received on November 28, 2000.  A claim for service 
connection for "poor circulation," secondary to diabetes 
mellitus, was received on March 15, 2001.  A March 2002 
rating decision granted service connection for diabetes 
mellitus and denied service connection for poor circulation.     

On March 29, 2002, the veteran submitted a written statement 
in which he alleged that the March 2002 rating decision was 
incorrect in finding that there was no medical evidence of 
poor circulation.  The veteran alleged that VA treatment 
records showed treatment for this condition.  He requested 
that the RO obtain additional VA medical records and reopen 
his claim for service connection for poor circulation.  

The RO construed the veteran's statement as a claim to 
reopen.  An August 2002 rating decision denied service 
connection for peripheral neuropathy, noted to be claimed as 
poor circulation.  The RO denied the claim based on the 
findings of a May 2001 VA examination which noted that the 
veteran's feet were essentially within normal limits.   

On November 14, 2002, the veteran submitted a claim for 
service connection for "loss of circulation" due to 
diabetes.  

The veteran underwent a VA examination of the arteries and 
veins on February 10, 2003.  The VA examiner diagnosed venous 
insufficiency of both lower extremities and opined that 
venous insufficiency was not a secondary complication of 
diabetes mellitus.  The examiner indicated that there was no 
significant peripheral vascular disease.  

A March 2003 rating action denied service connection for 
venous insufficiency and stasis dermatosis of the bilateral 
lower extremities secondary to diabetes mellitus.  The RO 
denied the claim on the basis of the February 2003 VA 
examination which found that venous insufficiency was not 
secondary to diabetes mellitus.  In April 2003, the veteran 
submitted a notice of disagreement with the March 2003 rating 
decision.  A substantive appeal was received in July 2003.  

VA outpatient records dated on June 9, 2005 included a 
diagnosis of moderate tibioperoneal trunk disease in the left 
lower extremity.  

In an August 2005 rating decision, the RO granted service 
connection for peripheral vascular disease, left lower 
extremity and assigned an effective date of June 6, 2005.  
The RO based the effective date on the findings noted in the 
VA medical records on June 9, 2005.  The RO noted that this 
examination result was shown on June 6, 2005.  

A January 2008 VA examination of the arteries and veins noted 
a diagnosis of chronic, bilateral venous stasis and stasis 
dermatitis.  The examiner opined that diabetes mellitus is a 
major contributor to the vascular condition of venous 
insufficiency.  

The Board finds that an effective date of February 10, 2003 
is warranted.  The effective date of an evaluation and award 
of pension, compensation, or dependency and indemnity 
compensation based on an original claim, a claim reopened 
after final disallowance, or a claim for increase will be the 
date of receipt of the claim or the date entitlement arose, 
whichever is the later.  38 U.S.C.A. § 5110 (West 2002); 38 
C.F.R. § 3.400 (2007).  In this case, the claim for poor 
circulation that was received on March 15, 2001 remained on 
appeal because the RO did not provide a Statement of the Case 
in response to the veteran's notice of disagreement.  
However, entitlement to service connection was not 
established until February 10, 2003, when a VA examination 
diagnosed venous insufficiency.  While various complaints  
related to the left leg were noted prior to February 10, 
2003,  there was no record in evidence of a diagnosis of 
either venous insufficiency or peripheral vascular disease 
before that date.  Accordingly, the Board finds that the 
veteran is entitled to an effective date of February 10, 2003 
for the grant of service connection for peripheral vascular 
disease, left lower extremity.   


ORDER

An effective date of February 10, 2003 for service connection 
for peripheral vascular disease, left lower extremity (also 
claimed as venous insufficiency) is granted.
 

____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs