Citation Nr: 1202205 Decision Date: 01/20/12 Archive Date: 01/30/12 DOCKET NO. 10-14 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than December 31, 2008, for the award of service connection for type II diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for type II diabetes mellitus, effective December 31, 2008. The Veteran has appealed the effective date assigned. In March 2011, the Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is associated with the claims file. FINDINGS OF FACT 1. On December 8, 2003, the Veteran filed an original claim for service connection for type II diabetes mellitus, and in a July 2004 rating decision, the RO denied the claim. The Veteran was notified of such decision by a letter dated in July 2004, but he did not file a timely appeal, and the July 2004 rating decision became final. 2. Following the July 2004 rating decision, no evidence or correspondence was submitted until December 31, 2008. 3. On December 31, 2008, the Veteran filed a request to reopen his previously denied claim for service connection for type II diabetes mellitus. In the April 2009 rating decision on appeal, the RO granted service connection for type II diabetes mellitus, effective December 31, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than December 31, 2008, for the award of service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 5101, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Once service connection is granted, the claim is substantiated. Thus, additional notice regarding the effective date assigned for type II diabetes mellitus is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the Veteran in the development of a claim, which is not abrogated by the granting of service connection. The Veteran's service treatment records and VA treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis 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), 3.160. The term "claim" or "application" means 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 one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation states that the effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r). The Veteran contends that the effective date for the grant of service connection for type II diabetes mellitus should be the date that his original claim for service connection was received, or based on the date that his disability first arose. The Veteran was discharged from active service in July 1970. On December 8, 2003, he filed an original claim for service connection for type II diabetes mellitus, and in a July 2004 rating decision, the RO denied the claim. The Veteran was notified of such decision by a letter dated in July 2004, which included appellate rights and advised the Veteran that he had one year to appeal. The Veteran did not file a timely appeal, and therefore the July 2004 rating decision became final. See 38 U.S.C.A. § 7105; see also 38 C.F.R. §§ 20.302; 20.1103. Following the July 2004 rating decision, no evidence or correspondence was submitted until December 31, 2008. On December 31, 2008, the Veteran filed a request to reopen his previously denied claim for service connection for type II diabetes mellitus. In the April 2009 rating decision on appeal, the RO granted service connection for type II diabetes mellitus, effective December 31, 2008, the date of receipt of the reopened claim. During the course of the current appeal, VA treatment records were submitted to show that the Veteran was first assessed with a high glucose reading in April 2002, and that he was first diagnosed with "new onset" type II diabetes mellitus in October 2007. At an October 2009 VA diabetes mellitus examination, the Veteran reported that he had been diagnosed with type II diabetes mellitus in 2004, though no medical evidence has been submitted to show such a diagnosis in 2004. The Veteran argues that his effective date should be based on the date that his original claim for service connection was received. However, the Veteran's original claim for service connection (filed on December 8, 2003) was denied in a July 2004 rating decision. When the Veteran did not file a timely appeal, this July 2004 rating decision became final. The date of receipt of the Veteran's reopened claim is December 31, 2008. There is no evidence or correspondence in the record that was received between the July 2004 rating decision and the December 31, 2008 claim to reopen. Therefore, December 31, 2008 (the date of the reopened claim) is the appropriate effective date for the grant of service connection for type II diabetes mellitus, in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(r). The Veteran alternatively argues that his effective date should be based on the date that his disability first arose. After he filed his December 31, 2008, claim to reopen, the Veteran submitted the aforementioned VA treatment records which show a high glucose reading in April 2002 and an initial diagnosis of type II diabetes mellitus in October 2007. Nevertheless, the Board finds that December 31, 2008, is the appropriate effective date for the grant of service connection for type II diabetes mellitus, in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400; the date of the reopened claim controls as it is later than the date entitlement arose. The Board notes that while evidence from a report of a VA examination may in certain circumstances be accepted as an informal claim for benefits pursuant to 38 C.F.R. § 3.157, the Board finds that such regulation is not applicable in this case. Specifically, that regulation provides that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, the date of outpatient examination will be accepted as the date of receipt of a claim for increase or to reopen. 38 C.F.R. § 3.157(b). However, in this case, service connection had not previously been established for type II diabetes mellitus at the time the Veteran sought such treatment. Thus, the provisions of section 3.157(b) are not applicable to the instant case. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) ("§ 3.157(b) . . . provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted"). The Veteran's original claim filed on December 8, 2003 was finally denied. The law provides that the earliest effective date that may be assigned for the grant of service connection for the Veteran's type II diabetes mellitus is the date of receipt of the reopened claim, which was received on December 31, 2008. See 38 U.S.C.A. § 5110(a); see also 38 C.F.R. § 3.400(r). There is no doubt to be resolved, and an effective date earlier than December 31, 2008, is not warranted. ORDER An effective date earlier than December 31, 2008, for the award of service connection for type II diabetes mellitus is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs