Citation Nr: 1007668 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 05-27 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to an effective date prior to September 10, 2003, for service connection for the complications of type II diabetes mellitus, namely diabetic nephropathy, with arterial hypertension; residuals of a myocardial infarction, coronary artery disease, status post coronary artery bypass graft; erectile dysfunction; special monthly compensation for loss of use of a creative organ; carpal tunnel syndrome of the left upper extremity; carpal tunnel syndrome of the right upper extremity; peripheral neuropathy; of the left lower extremity; peripheral neuropathy of the right lower extremity. 3. Entitlement to an effective date prior to September 10, 2003, for an award of a total rating by reason of individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1965 to June 1967. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the San Juan, the Commonwealth of Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO), that, in pertinent part, granted service connection for diabetes mellitus; diabetic nephropathy, with arterial hypertension; the residuals of a myocardial infarction, coronary artery disease, status post bypass graft; erectile dysfunction; special monthly pension based on loss of use of a creative organ; carpal tunnel syndrome of each upper extremity; peripheral neuropathy of each lower extremity; and a TDIU. The Veteran appealed the 20 percent rating initially assigned for the diabetes mellitus, assigned by rating decision dated in December 2004, and the effective date for each award, assigned as September 10, 2003 by rating decision July 2005. The issue of an initial rating in excess of 20 percent for diabetes mellitus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. The Veteran's original claim for service connection for type II diabetes mellitus was received on September 10, 2004; there are no communications prior to this time which may be considered a formal or informal claim. 2. The RO established service connection for type II diabetes mellitus; diabetic nephropathy, with arterial hypertension; residuals of a myocardial infarction, coronary artery disease, status post coronary artery bypass graft; erectile dysfunction; special monthly compensation for loss of use of a creative organ; carpal tunnel syndrome of the left upper extremity; carpal tunnel syndrome of the right upper extremity; peripheral neuropathy; of the left lower extremity; and peripheral neuropathy of the right lower extremity effective September 10, 2003, pursuant to the earlier effective date provisions for service connection grants under liberalizing legislation pursuant to 38 C.F.R. § 3.114(a)(3). 3. The medical evidence of record fails to show that the Veteran claimed service connection for type II diabetes mellitus; diabetic nephropathy, with arterial hypertension; residuals of a myocardial infarction, coronary artery disease, status post coronary artery bypass graft; erectile dysfunction; special monthly compensation for loss of use of a creative organ; carpal tunnel syndrome of the left upper extremity; carpal tunnel syndrome of the right upper extremity; peripheral neuropathy; of the left lower extremity; and peripheral neuropathy of the right lower extremity prior to September 10, 2003. 4. The Veteran's informal claim for TDIU was received in March 2005, and TDIU was granted effective from September 10, 2003; he did not file a claim for TDIU prior to that date; his only service- connected disability prior to that date was an appendectomy scar rated zero percent; and prior to that date the appendectomy scar was not shown to be of such severity as to preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 10, 2003 for the grant of service connection for type II diabetes mellitus; diabetic nephropathy, with arterial hypertension; residuals of a myocardial infarction, coronary artery disease, status post coronary artery bypass graft; erectile dysfunction; special monthly compensation for loss of use of a creative organ; carpal tunnel syndrome of the left upper extremity; carpal tunnel syndrome of the right upper extremity; peripheral neuropathy; of the left lower extremity; and peripheral neuropathy of the right lower extremity. 38 U.S.C.A. §§ 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2009). 2. Prior to September 10, 2003, the schedular requirements for TDIU were not met, and a TDIU rating was not warranted; an effective date for the award of TDIU prior to that date is not warranted. 38 U.S.C.A. §§ 1155, 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.340, 3.341, 3.400, 4.15, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the earlier effective date claims decided herein. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform 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. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the effective date for the awards on appeal, as the July 2005 rating decision that is on appeal assigned an effective date for the awards, statutory notice had served its purpose and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). June and October 2007 statement of the case (SOC) and supplemental SOC provided notice on the "downstream" issue of effective dates of awards and readjudicated the matter after the Veteran was given the opportunity to respond. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has not alleged that notice on this issue was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). All evidence relevant to the Veteran's claim has been secured. It is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The Veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Earlier Effective Date for Service Connection Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." With respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Department of Veteran's Affairs. 38 C.F.R. § 3.816 (2008). See Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer et al v. Veterans Admin. of the Gov't of the U. S., 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease. 38 C.F.R. § 38 C.F.R. § 3.816(b)(1)(i) (2008). The term covered herbicide diseases includes type II diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i) (2008). This regulation applies to claims for disability compensation for the covered herbicide disease that were either pending before VA on May 3, 1989, or were 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. 38 C.F.R. § 3.816(c) (2005). 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. The Veteran contends that he is entitled to an effective date prior to September 10, 2003, for the award of service connection for his type II diabetes mellitus and the additional disabilities that have been associated with this disorder. The record reflects that he was first diagnosed with type II diabetes mellitus in approximately 1998. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" 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). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Veteran filed a claim of entitlement to service connection for type II diabetes mellitus and associated disabilities by means of a VA Form 21-4138 received on September 10, 2003. Prior to this time, there was no indication of a request of service connection for diabetes mellitus. Id. As referenced above, VA issued regulations creating a presumption of service connection for diabetes mellitus, type II, effective May 8, 2001. 66 Fed. Reg. 23,166. Because the Veteran did not file his claim on or before May 8, 2001, Nehmer is inapplicable to the instant case, and therefore the effective date cannot be earlier than the effective date of the liberalizing law, May 8, 2001, and cannot be retroactive for more than one year from the date of application. 38 U.S.C.A. § 5110(g) (West 2002); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd by 106 F.3d 1577 (Fed. Cir. 1997); 38 C.F.R. § 3.114. The RO established service connection for type II diabetes mellitus with numerous associated disabilities, including heart disease, nephropathy, neuropathy, carpal tunnel syndrome and erectile dysfunction as a disease presumed to be due to exposure to herbicide or Agent Orange and established the effective date of the award as September 10, 2003 in accord with 38 C.F.R. § 3.114(a)(3). See also Liesegang, 312 F.3d 1368. The Board acknowledges the Veteran's contention that the effective date of his diabetes mellitus service connection grant should correspond to the date he was forced to retire from employment as a police officer in 1998. However, no claim for service connection for diabetes mellitus was received until September 10, 2003, and there are no prior documents that can be construed as a claim for service connection for type II diabetes mellitus or for any of the disabilities for which service connection has been established as related thereto. Prior to this time, the only claim for compensation benefits received from the Veteran related to the residuals of an appendectomy. Service connection for an appendectomy scar, rated zero percent disabling, was granted by the RO in a February 1978 rating decision. Although he was diagnosed with the disease prior to May 8, 2001, the effective date of service connection is determined by the date he filed his original claim with VA, and with application of 38 C.F.R. § 3.114(a)(3), which allows an effective date for no more than one year prior to the date of receipt of the Veteran's claim. Accordingly, an effective date prior to September 10, 2003 is not warranted. Earlier Effective Date for TDIU Except as otherwise provided, the effective date of an evaluation and award of 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; 38 C.F.R. § 3.400. Correspondence from the Veteran received in March 2005 shows a claim for TDIU. The RO ultimately granted TDIU effective from September 10 2003, the effective date of the award of service connection for diabetes mellitus, with numerous associated disabilities. A claim for TDIU is essentially a claim for an increased rating and the effective date of an award on such claim is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). The report of an examination or hospitalization may constitute an informal claim for increase when the report relates to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b)(1). VA will grant a TDIU rating when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability shall be rated at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service- connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra- schedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is "whether the Veteran's service- connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Inasmuch as the claim for TDIU was received in March 2005, and no prior claim for TDIU has been identified, under the governing regulation (i.e., 3.400(o)(2)) the question before the Board is essentially limited to consideration as to whether during the year prior to March 2005, the Veteran met the legal requirements for TDIU and/or that it was factually shown during that year that due to his service connected disability the Veteran was precluded from engaging in substantially gainful employment. No other theory of entitlement to an earlier effect date authorized by law has been alleged by the Veteran or his representative. Prior to September 10, 2003 the Veteran's only service connected disability was an appendectomy scar, rated zero percent disabling. Thus, the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were not met prior to the establishment of service connection for diabetes mellitus and associated disabilities in September 2003. Furthermore, there is evidence that the appendectomy scar is shown to have been of such nature and severity as to render the Veteran incapable of maintaining employment. The Board notes that the Veteran claims he should be entitled to a TDIU rating effective from the date on he retired from his employment as a police officer in 1998. As noted, service connection for the disabilities upon which entitlement to the TDIU was based was not established until September 10, 2003. As such, there is no legal authority for grant of a TDIU rating from the date sought. Accordingly, an effective date for the award of TDIU prior to September 10, 2003 is not warranted. ORDER An effective date prior to September 10, 2003, for service connection for type II diabetes mellitus, with complications, namely diabetic nephropathy, with arterial hypertension; residuals of a myocardial infarction, coronary artery disease, status post coronary artery bypass graft; erectile dysfunction; special monthly compensation for loss of use of a creative organ; carpal tunnel syndrome of the left upper extremity; carpal tunnel syndrome of the right upper extremity; peripheral neuropathy; of the left lower extremity; peripheral neuropathy of the right lower extremity is denied. An effective date prior to September 10, 2003, for an award of a total rating by reason of individual unemployability due to service connected disabilities (TDIU), is denied. REMAND The Veteran is also claiming an increased initial rating for diabetes mellitus. His representative has pointed out that he was last examined for this disability in November 2006 and that there are contentions that the disability has worsened over the ensuing years. It is asserted that there is a duty to obtain a contemporaneous medical examination. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the foregoing, the Board finds that an additional examination is warranted at this time. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the Veteran to be examined by an appropriate physician to determine the severity of his diabetes mellitus. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. The examiner should note the regimen in place for management of the disease, including the dosage of insulin or oral hypoglycemic agents, any dietary restrictions, and any medically required regulation of activities (e.g., avoidance of strenuous occupational and recreational activities). The examiner should note whether the diabetes has resulted in episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization and/or visits to a diabetic care provider, progressive loss of weight and strength, and any complications that would be compensable if separately evaluated. 2. The RO should then readjudicate this matter. If it remains denied, the RO should issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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. 2008). ______________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs