Citation Nr: 1228303 Decision Date: 08/16/12 Archive Date: 08/21/12 DOCKET NO. 05-04 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to January 24, 2004, for the award of service connection for right upper extremity peripheral neuropathy. 2. Entitlement to an effective date prior to January 24, 2004, for the award of service connection for left upper extremity peripheral neuropathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from January 1965 to May 1968, including service in the Republic of Vietnam from January 1966 to January 1967. This matter came before the Board of Veterans' Appeals (Board or BVA) on appeal from a January 2005 decision by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The Board previously remanded the appeal in April 2009 and November 2010. FINDINGS OF FACT 1. The initial claim for compensation for right and left upper extremity peripheral neuropathy was received on October 26, 1995, and was denied prior to the addition of diabetes mellitus, type II, to the diseases recognized as presumptively related to herbicide exposure, which became effective May 8, 2001. 2. The preponderance of the evidence indicates that right upper extremity peripheral neuropathy did not manifest prior to January 24, 2004. 3. The preponderance of the evidence indicates that left upper extremity peripheral neuropathy did not manifest prior to January 24, 2004. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 24, 2004, for the award of compensation for right upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1154(a), 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816 (2011). 2. The criteria for an effective date prior to January 24, 2004, for the award of compensation for left upper extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1154(a), 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to assist and notify Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present matter, the Veteran's claim seeks an earlier effective date for right and left upper extremity peripheral neuropathy, which arises from the grant of the initiating claim for such benefits. As the Veteran's present appeal relates to the downstream issue of the assigned effective date, the notice provisions of 38 U.S.C.A. § 5103 are not applicable. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (VA's notice obligations do not apply to claims that could not be substantiated through notice and assistance). The Board also finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues has been obtained. While the Veteran's original claims folder was apparently mislaid and the claims folder has been reconstructed, VA has fulfilled its heightened duty to assist in the development of the Veteran's claim, including efforts to obtain duplicates of the evidence associated with the original claims folder and from alternate or collateral sources. Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006). The Veteran has also provided relevant evidence and records pertinent to his claim. Additionally, the Veteran's available service and post-service treatment records have been obtained. The Veteran has been provided appropriate VA examinations and has declined a Board hearing in connection with his appeal. The Veteran has not identified any additional relevant evidence VA should seek to obtain on his behalf, nor are any such records reasonably identified by the record. Additionally, the AMC/RO has substantially, if not fully, complied with the Board's April 2009 and November 2010 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to the Veteran with the development of evidence is required. Earlier effective date claim The Veteran seeks entitlement to an effective date prior to January 8, 2004, for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy (upper extremity peripheral neuropathy). Specifically, as conveyed in a February 2005 statement, he maintains that the appropriate effective date for this condition is August 1, 1997, because this is the date VA received his claim. As a foundational matter, while the January 2005 rating action characterized the matter as a grant of service connection for upper extremity peripheral neuropathy, this misstates the nature and basis for the award of the benefit. This award of compensation benefits for upper extremity peripheral neuropathy did not represent recognition of the disability as a distinct condition related to service or a service-connected disability but was based on the condition being a manifestation of the Veteran's service connected diabetic process. Stated differently, the January 2005 award of compensation for upper extremity peripheral neuropathy in fact reflected a separate disability evaluation for service-connected diabetes mellitus, type II, with upper extremity peripheral neuropathy being a manifestation of the service-connected disability. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. Thus, the submission and ultimate grant of the Veteran's service connection claim necessarily included all manifestations of the disability (e.g., peripheral neuropathy) and the analysis of the appeal will proceed in a consistent manner. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 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, a claim re-opened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of [the] application." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean, 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 re-opened 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 C.F.R. § 3.400. 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). An informal claim must identify the benefit 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 after 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; Norris v. West, 12 Vet. App. 413 (1999). With respect to earlier effective date claims for diseases presumed to be caused by herbicide exposure, VA has issued special regulations to implement orders of a United States District Court in the class action of Nehmer v. U.S. Veterans Administration. See 38 C.F.R. § 3.816; see also Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F. 3d 1158 (9th Cir. 2002), aff'g sub nom., Nehmer v. U.S. Veterans Admin., 32 F.Supp. 2d 1175 (N.D. Cal. 1999), and, 712 F.Supp. 1404 (N.D. Cal. 1989). In pertinent part, a Nehmer class action member is defined as a Vietnam Veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide disease" includes type II diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i). This regulation applies to claims for disability compensation for the covered herbicide disease where VA issued a decision denying compensation for the covered disability, between May 3, 1989, 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)(2)(ii). Diabetes mellitus, type II, was included as a presumptive herbicide related disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of July 9, 2001. See 66 Fed. Reg. 23, 166 (Jul. 9, 2001). The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit (Federal Circuit) back to May 8, 2001. See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002); see also 66 Fed. Reg. 23, 166-69 (May 8, 2001). Accordingly, if a Veteran's claim denied between May 3, 1989 and May 8, 2001, the effective date must be the date of the claim or the date the disability arose whichever is later. Otherwise, the effective date of the award will be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400, which addresses effective dates when service connection has been granted based on a liberalizing change in the law. In this case, the inclusion of diabetes mellitus, type II, as a disease formally associated with exposure to herbicide agents is a liberalizing law. 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. VA received the Veteran's initial service connection claim for diabetes mellitus, type II, on October 26, 1995. Although the determination(s) corresponding to the initial claim are regrettably no longer available, an April 1997 rating sheet indicates the claim was at a minimum denied as of this date. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998) (holding that, in light of the presumption of regularity, it is permissive for VA to rely on the facts stated in the prior VA determination when relevant records have been lost or mislaid). In statements respectively received by VA on November 26, 2003, and January 28, 2004, the Veteran indicated that he sought compensation for diabetes mellitus, type II and its manifestations, to include peripheral neuropathy. The RO granted service connection for diabetes mellitus, type II, on a presumptive basis, recognizing erectile dysfunction and diabetic retinopathy as non-compensable manifestations the diabetic process, in an August 2004 determination; however, compensation for peripheral neuropathy as a manifestation of the diabetic process was explicitly determined not to be warranted because there was no evidence the Veteran had any such diagnosis. The Veteran submitted a September 2004 notice of disagreement challenging the determination not to award compensation for diabetic peripheral neuropathy, reporting his symptoms to include pain and swelling of the hands. In a January 2005 rating action compensation for upper extremity peripheral neuropathy, as a manifestation of the diabetic process, was granted, after the RO concluded the disability had been diagnosed. Compensation of this manifestation was awarded January 24, 2004, the date the RO deemed it had received the Veteran's claim for this condition. The Veteran submitted a timely notice of disagreement and perfected appellate review of the assigned effective date for the award of compensation for the condition, which is presently before the Board. Notably, although an August 2004 RO determination granted presumptive service connection for diabetes mellitus, the matter remained open and pending until a June 2011 rating action assigned an effective date consistent with the relevant law (i.e., October 26, 1995). See 38 C.F.R. § 3.816; see also Nehmer, supra. Merits Based on the evidence of record and applicable law and regulations, the Board finds that compensation for upper extremity peripheral neuropathy, as a manifestation of diabetes mellitus, type II, is not warranted prior to the currently assigned date of January 24, 2004. In the present matter, the Veteran filed an initial claim for VA benefits for diabetes mellitus, type II, and its manifestations, to include upper extremity peripheral neuropathy, on October 26, 1995, and issued an unfavorable determination in response to this claim between May 3, 1989, and May 8, 2001. See 38 C.F.R. §§ 3.816(c)(2), 4.119, Diagnostic Code 7913, Note 1; see also Clemons and Nehmer. Further, the Veteran is presumed to have been exposed to herbicides during service in the Republic of Vietnam and, effective May 8, 2001, VA amended the relevant regulations to recognize diabetes mellitus, type II, as presumptive related to herbicide exposure. See 38 C.F.R. § 3.307(a)(6); see also Liesegang. Accordingly, pursuant to 38 C.F.R. § 3.816 and the holdings in the Nehmer cases, to the extent the initial October 26, 1995, claim encompassed a claim seeking compensation for upper extremity peripheral neuropathy, as a manifestation of the diabetic process, the claim remained open and pending until the full benefit sought was granted in the January 2005 rating action. Prior to July 2004, the most probative medical evidence of record indicates that the Veteran was not diagnosed as having upper extremity peripheral neuropathy. The Board acknowledges the January 2004 private treatment record, in which a private physician states "I wonder now if [the Veteran] does not have an early peripheral neuropathy in the hands," documented in a private treatment record, but finds the statement to be of little if any probative value. This statement, even when considered in connection with all other evidence of record, does not constitute a reasonably clear medical statement or opinion regarding the propriety of a peripheral neuropathy diagnosis. On its face, the statement is speculative and of limited, if any, probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, the hypothesis of the private physician is further limited when considered in conjunction with the February 2004 VA examination report, documenting the absence of any abnormalities on neurological examination. Accordingly, the Board finds this January 2004 private treatment record is not of sufficient probative value to support any conclusion that upper extremity peripheral neuropathy, as a manifestation of the diabetic process, was present at this time. The most probative medical evidence of record places the onset of upper extremity peripheral neuropathy, as a manifestation of the diabetic process, in July 2004. A December 1996 VA examination reflect the Veteran's account of upper extremity pain and evidence swelling of the wrists and painful motion, the examiner reported no abnormalities on neurological examination and did not diagnose peripheral neuropathy or any similar neurological condition. Further, a February 2004 VA examination report that documents no account by the Veteran of any neurological symptoms, reflects a normal neurological examination and contains the examiner's specific statement that there were "[n]o apparent problems cardiac or neurologic." However, a July 2004 new patient VA treatment record is the first medical evidence of record that clearly indicates the Veteran's diagnosis of diabetic neuropathy and, after this treatment, the medical evidence of record continually reflects his treatment for, and diagnosis of, upper extremity peripheral neuropathy, as a manifestation of the diabetic process. The Board finds the aforementioned evidence to be the most probative evidence of record related to the onset of the Veteran's diagnosis of upper extremity peripheral neuropathy because each is generally consistent with the other medical evidence of record, reflects clear basis for the provided diagnoses, or lack thereof, which in so doing sufficiently conveys acceptance of the Veteran's competent account of symptomatology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that the most probative evidence of record does not support a finding that the Veteran's diagnosis of upper extremity peripheral neuropathy, as a manifestation of the diabetic process, arose prior to January 24, 2004. In making this determination the Board has considered the Veteran's competent account of neurological symptomatology, including pain and onset, but concludes his statements do not provide sufficient competent and credible evidence that upper extremity peripheral neuropathy, as a manifestation of the diabetic process, had its onset prior to January 24, 2004. Without question, the Veteran is competent to provide an account of neurological symptomatology, to include pain; however, in the present circumstance, the Veteran does not have the training or expertise to diagnose peripheral neuropathy or provide a competent etiological opinion relating any such diagnosis to diabetes mellitus, type II. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.Cir.2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). The record does reflect at least arguable evidence of the Veteran's continued account of upper extremity symptomatology but medical professionals, having specialized training and education and upon performing appropriate examinations and tests, considered these symptoms and attributed them to an arthritic condition, as reflected in December 1996 and February 2004 VA examination reports. Moreover, as detailed above, the most probative medical evidence of record does not diagnose any peripheral neuropathy condition, prior to January 24, 2004. The Board does not doubt the sincerity of the Veteran's report of symptomatology and onset symptoms but to the extent he attributes his symptoms peripheral neuropathy, as a manifestation of the diabetic process, it is contrary to the more probative assessments and opinions provided by qualified medical professionals. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to); Jandreau, 492 F.3d at 1376-77 (stating "[w]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board"). Because the relevant claim remained pending since October 26, 1995, and presumptive service connection for diabetes mellitus is warranted as of this date, it does not follow that compensation for upper extremity peripheral neuropathy, as a manifestation of the diabetic process, is also warranted on the same date. Indeed, the courts' holdings in the Nehmer cases and 38 C.F.R. § 3.816, make clear that compensation for a covered disease is to be awarded effective the date VA receives the claim or the date the disability arose whichever is later and in the present matter the preponderance of the evidence indicates that upper extremity peripheral neuropathy did not arise prior to January 24, 2004. Thus, the earliest possible effective date for the award of compensation for the condition is the presently assigned effective date and the claim is denied. The Board notes that prior VA determinations and numerous statements from the Veteran reflect an assertion clear and unmistakable error (CUE) in the January 2005 rating decision, presently certified to the Board for review. Nevertheless, the Veteran has perfected appellate review of the assigned effective date, and the matter is not ripe for collateral attack on the basis of CUE because the determination is not final and is subsumed by the present Board determination. Accordingly, as a matter of law, the Veteran cannot assert a claim of CUE at this time. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). ORDER Entitlement to an effective date prior to January 24, 2004, for right upper extremity peripheral neuropathy is denied. Entitlement to an effective date prior to January 24, 2004, for left upper extremity peripheral neuropathy is denied. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs