Citation Nr: 1312936 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-45 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an effective date prior to June 15, 2007, for the grant of service connection for diabetes mellitus including as due to herbicide exposure. REPRESENTATION Appellant represented by: John S. Berry ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active service from February 1969 to February 1971, including service in Vietnam. Thereafter he was a member of the Army Reserve until February 1975. The Veteran was awarded the Combat Infantryman's Badge and a Purple Heart Medal. This appeal comes before the Board of Veterans' Appeals (Board) from January and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. As discussed in more detail below, there was substantial compliance with the Board's October 2009 remand regarding the Veteran's claim for an earlier effective date. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The first medical evidence of a diagnosis of diabetes is May 2007. 2. On June 15, 2007, the Veteran filed a claim for service connection for diabetes mellitus including as due to herbicide exposure. 2. In a January 2008, decision, the RO granted service connection for diabetes mellitus type II, effective August 15, 2007. 3. In an April 2008 decision, the RO changed the effective date of the grant of service connection to June 15, 2007. CONCLUSION OF LAW The criteria for an effective date earlier than June 15, 2007, for the grant of service connection for diabetes mellitus, including as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remand In October 2009, the Board remanded the case with regard to the Veteran's earlier effective date claim, so the RO could issue a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Review of the record indicates substantial compliance with the remand order as an SOC concerning the Veteran's earlier effective date claim was issued in October 2010. See Stegall, 11 Vet. App. at 271. II. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for diabetes mellitus. Courts have held that once service connection is granted the claim is substantiated, additional notice 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. There is no indication that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not provided any information to VA concerning available treatment records that were not obtained. While the Veteran has not been afforded a VA examination with regard to his claimed diabetes mellitus including as due to herbicide exposure, VA need not conduct an examination because the information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4). Specifically, the record documents the Veteran's diagnosis and treatment of diabetes mellitus since May 2007, his military service in Vietnam and his presumptive exposure to herbicides. It is the dates related to such evidence, and not their content, which is relevant here. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim for service connection for a back disability at this time. III. Earlier Effective Date In a statement date-stamped as received at the RO on June 15, 2007, the Veteran filed a claim for entitlement to service connection for diabetes. He reported that he had been diagnosed with diabetes in May 2007, but had been "monitored" since June 2006. In a January 2008 rating decision, the RO granted service connection for diabetes on a presumptive basis and assigned a 20 percent disability rating, effective August 15, 2007. The Veteran filed a Notice of Disagreement in March 2008, claiming that the assigned effective date was incorrect. In an April 2008 rating decision, the RO granted the Veteran an earlier effective date of June 15, 2007, the date on which he had filed his claim for entitlement to diabetes mellitus. The RO found that the Veteran was first diagnosed with diabetes mellitus on May 1, 2007 by a nurse with the VA Medical Center (VAMC) in Kansas City. See VAMC Kansas City, Primary Care Nurse Practitioner Note, May 1, 2007 ("assessment - dm- start metformin"). Pursuant to the Board's remand instructions, the RO issued a statement of the case in October 2010. The Veteran perfected a timely appeal with respect to his effective date claim in November 2010. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). Although the Veteran asserts he was diagnosed with diabetes mellitus prior to filing his claim, the effective date of a grant of service connection is not determined by the date upon which symptoms manifest or that a diagnosis is provided, but by the date a claim is filed. 38 U.S.C.A § 5110. A report of symptoms is not sufficient to create a claim for service connection. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (medical evidence cannot be an informal claim, there must be claimant intent to apply for a benefit). Any claim for VA benefits must be submitted in the form prescribed by VA. 38 U.S.C.A. § 5101(a). A claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). Certain diseases, to include type II diabetes mellitus, may be presumed to have resulted from exposure to certain herbicide agents such as Agent Orange. 38 C.F.R. §§ 3.307, 3.309(e). Presumptive service connection for type II diabetes mellitus was initially established, effective July 9, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). The effective date was later amended to May 8, 2001. See 69 Fed. Reg. 31,882 (June 8, 2004). With respect to earlier effective date claims for diseases presumed to be caused by herbicide exposure, VA has issued special regulations. 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). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i) (2012). The term "covered herbicide disease" includes diabetes mellitus. 38 C.F.R. § 3.816(b)(2)(i). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. The effective date of the regulation which added diabetes mellitus as a disease presumptively due to in-service exposure to herbicides is May 8, 2001. See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4). In this case, the Veteran served in Vietnam and he was granted presumptive service connection for diabetes based on exposure to herbicides during such service. As such, he is a Nehmer class member. However, the Veteran was not denied compensation for diabetes between September 25, 1985, and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and May 8, 2001, the date on which the liberalizing law that added diabetes as a disease presumptively due to in-service exposure to herbicides became effective. See Liesegang, 312 F.3d at 1368. Therefore, the effective date for the grant of service connection for diabetes must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Because the Veteran's claim was filed many years after he was discharged from service in 1971, as a general matter, the effective date would be the date of receipt of the claim, as that is later than the date entitlement arose. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. However, as noted above, a liberalizing law applies and the criteria for retroactive payment pursuant to 38 C.F.R. § 3.114 are applicable. VA treatment records show the first diagnosis of diabetes in May 2007 at which time the Veteran was prescribed medication. The Veteran claims to have been "monitored" since June 2006, but he also reports May 2007 as the first diagnosis. Thus, he did not meet all eligibility criteria for service connection for diabetes, specifically, a diagnosis of diabetes, on the effective date of the liberalizing law that allows presumptive service connection for diabetes based on herbicide exposure, or May 8, 2001, and continuously through the date his claim was received. As such, he does not meet the criteria for retroactive payment. Prior to June 15, 2007, the date of the Veteran's claim, there is no document of record that may reasonably be construed as a formal or informal claim for service connection for diabetes mellitus. See 38 C.F.R. §§ 3.151(a), 3.155(a). Therefore, the earliest possible effective date for the award of service connection for diabetes mellitus is June 15, 2007, the date the Veteran's claim for service connection was filed. See 38 C.F.R. §§ 3.114(a), 3.400. Thus, the Board must find that the preponderance of evidence is against the claim; the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107. ORDER Entitlement to an effective date earlier than June 15, 2007 for the award of diabetes mellitus including as due to herbicide exposure is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs