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