Citation Nr: 1323311 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 09-36 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation for posttraumatic stress disorder (PTSD) in excess of 50 percent, prior to August 20, 2010. 2. Entitlement to an effective date earlier than August 29, 2006, for the grant of service connection for diabetes mellitus, type II. 3. Entitlement to an effective date earlier than August 29, 2006, for the grant of service connection for coronary artery disease (CAD), status-post bypass surgery. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1969. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted service connection for the disabilities on appeal. The effective date for each grant of service connection was August 29, 2006. During the pendency of the appeal, a September 2009 rating decision assigned a 50 percent evaluation for the Veteran's PTSD, effective August 29, 2006. A January 2011 rating decision assigned a 100 percent evaluation for the Veteran's PTSD, effective August 20, 2010. The claim for a higher rating remains before the Board because the staged rating assigned for the period before August 20, 2010, remains less that the maximum available benefit awardable for that period. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue on appeal does not include the question of entitlement to an earlier effective date for the rating assigned subsequent to the rating action on appeal. The claim is as noted on the title page. In February 2012, the Board received correspondence from a service organization other than the National Association of County Veterans Service Officers stating that the Veteran wished to withdraw all of his claims. Correspondence dated in September 2012 to the National Association of County Veterans Service Officers, asking whether the Veteran wished to continue with his appeal, was returned undelivered. As the Board has not received any correspondence from the Veteran or his accredited representative withdrawing any issue on appeal, the Board will adjudicate the Veteran's claims. When this case was previously before the Board in October 2012, it was remanded for additional development. The case is now before the Board for final appellate consideration. The RO in St. Petersburg, Florida, has jurisdiction of the Veteran's claims file. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record demonstrates that, prior to August 20, 2010, the Veteran's PTSD did not result in suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 2. The competent medical, and competent and credible lay, evidence of record does not establish a diagnosis or treatment for diabetes until after the effective date of the liberalizing law authorizing presumptive service connection for diabetes based on exposure to herbicides while serving in Vietnam. 3. An original claim for service connection for diabetes was received on August 29, 2006, many years after discharge from service, and more than one year after the effective date of the applicable liberalizing law. 4. VA received no communication that constituted a formal or informal claim for service connection for diabetes prior to August 29, 2006. 5. An original claim for service connection for a heart condition secondary to diabetes mellitus was received on August 29, 2006, many years after discharge from service. 6. VA received no communication that constituted a formal or informal claim for service connection for a heart condition secondary to diabetes mellitus prior to August 29, 2006. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation for PTSD in excess of 50 percent, prior to August 20, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an effective date earlier than August 29, 2006, for the grant of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.114, 3.151, 3.155, 3.159, 3.400, 3.816 (2012). 3. The criteria for an effective date earlier than August 29, 2006, for the grant of service connection for CAD, status-post bypass surgery, have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with an initial evaluation, and effective dates, following grants of service connection. 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). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. A September 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law concerning the evaluation of PTSD and the assignment of effective dates. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased evaluation for PTSD, and earlier effective dates for the grants of service connection for diabetes mellitus and CAD. With regard to the duty to assist, the claim's file and Virtual VA eFolder contain the Veteran's service treatment records, VA medical records, private medical records, and VA examination reports. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board also observes that all development requested by the Board's prior remand has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). Prior to the August 2010 effective date for the Veteran's 100 percent evaluation for PTSD, VA examinations for PTSD were conducted in January 2007 and August 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate, as the reports reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for the opinions offered. The examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Increased Initial Evaluation Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD is evaluated under Diagnostic Code 9411. The Rating Schedule provides that a 50 percent evaluation for PTSD is warranted by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Diagnostic Code 9411. A 70 percent evaluation for PTSD is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities: speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Diagnostic Code 9411. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Federal Circuit recently addressed how to apply the criteria in 38 C.F.R. § 4.130. In affirming a 70 percent evaluation for PTSD, the Federal Circuit stated that "[e]ntitlement to a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). The Veteran contends that his PTSD warrants an initial evaluation in excess of 50 percent, prior to August 20, 2010. The report of the January 2007 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran complained of sleepwalking and nightmares, poor sleep, depression, anxiety, violent thoughts, irritability and swearing at people. The examiner noted that they seemed moderate in nature. He had them most days. The Veteran was in his second marriage, of 15 years. He had no biological children, but three stepchildren and 6 grandchildren. The relationship with his immediate family was generally normal, but he tended to isolate himself from people including friends and relatives. On mental status exam, the Veteran was cooperative. Mood was depressed, affect was blunted, and speech was normal. There were no perceptual problems. Thought processes and thought content were normal. There was no suicidal or homicidal ideation. The Veteran was oriented to person, time and place. Insight and judgment were normal and impulse control was fair. The Veteran was working full time, and appeared to be somewhat isolative. The Axis I diagnosis was PTSD. The Axis V Global Assessment of Functioning (GAF) score was 50. The Veteran had moderate symptoms. He was somewhat isolalative, and working. An April 7, 2008, private psychological evaluation provides that the Veteran was seen on four dates. The report sets forth the clinical findings and the Veteran's symptoms. The examiner summarized by stating that, with a reasonable degree of professional probability, the Veteran was experiencing a chronic, mild to moderate form of PTSD. This disorder took the form of reexperiencing phenomena, avoidance of stimuli reminiscent of the trauma, numbing of responsiveness and autonomic hyperactivity. The Veteran's symptoms had interfered with his interpersonal functioning and caused him distress for many years. The Axis I diagnosis was PTSD, chronic, mild to moderate. The Axis V GAF score was 55. VA treatment records reflect treatment for PTSD prior to August 20, 2010. He had a GAF score of 51 on April 2, 2008, and a GAF score of 45 in August 2008. The report of the August 2009 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran reported that he continued to have anger problems, but that medication helped with this. He still occasionally had nightmares, 4 or more times a year. He had more frequent thoughts and memories of Vietnam, which were triggered ether by his therapy groups, hearing things on TV about current wars, or any other number of stimuli. The Veteran reported being stressed by being around too many people and was often trying to get away from people. He thus withdrew and isolated. He reported occasional depression, but denied crying spells. He did report some fatigue and irritability as well as anxiety. He said that numbing symptoms continued. He denied any significant suicidal thoughts or past behaviors. He had verbal outbursts occasionally, such as one a coupe of weeks earlier when he screamed at a pharmacist who was giving him an attitude. He denied physically violent behavior. The Veteran stated that he found himself sometimes being not as aggressive in his sales job as he could, which he attributed to feelings of depression and stress intolerance. Otherwise, work was satisfactory. The Veteran had three stepdaughters, with whom he had a generally satisfactory relationship. He said that he and his wife had a brother/sister type of relationship. He said that they were not physically close anymore, and seemed to spend a good deal of time watching their own TV shows in different rooms. They would sometimes go out to eat or some other function but sometimes he would go out by himself. He said that he could have a good time by himself. He was not involved in any clubs or organizations and tended to isolate more. He had a cousin out of state with whom he had occasional phone contact, a friend from the Marine Corps who lived out of state with whom he enjoyed contact, and the husband of a daughter-in-law whom he considered a friend. He enjoyed seeing his six grandchildren from his stepdaughters. The Veteran denied any problems with the law, any violent behavior and any suicidal behavior. On mental status examination, the Veteran was neatly dressed and groomed. No unusual behaviors were noted. His mood appeared generally euthymic, but there was some constriction of affect. His speech was of normal rate, pressure and volume, and there were no hallucinations, delusions or overt psychotic symptoms evidenced. His thought processes were organized, rational and relevant. There was no homicidal or suicidal ideation elicited. His memory, concentration and abstraction were good. Insight and judgment were generally good. He did frustrate easily and could be stress intolerant. The examiner noted that on one occasion the Veteran had gotten disoriented for a brief amount of time, and stated that he liked to have a TV or radio on constantly to keep him grounded and connected in the present reality. In summary, the examiner noted that the Veteran continued regularly and faithfully in his individual psychotherapy and group psychotherapy. Notes confirmed that the Veteran attended these on a regular basis, and reported that this as well as his medication had helped control some of his symptoms. However, he continued to experience PTSD problems that he said were about the same as they were a few years ago (without any significant improvement or worsening of symptoms). His main symptoms seemed to be low frustration tolerance and irritability, withdrawal from people and numbing, and frequently having intrusive thoughts, images and memories. He had also become less social over the years. Occupationally, he reported some decreased energy and sometimes to a limited extent neglecting his own business in sales. The Axis I diagnosis was PTSD, chronic. Symptoms were mild to moderate in severity and directly attributable to the Veteran's combat experience. The Axis V GAF scare was 55. He was currently working and was considered employable. The Board finds that the preponderance of the evidence is against entitlement to an initial schedular evaluation in excess of 50 percent for PTSD, prior to August 20, 2010. The foregoing records show that the Veteran did not have such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. In this regard, the Board observes that while the Veteran isolated himself during the relevant period, he maintained relationships with his wife, stepchildren, grandchildren, cousin and two friends. VA and private examiners described the Veteran's PTSD as moderate and mild to moderate. In addition, the Veteran's GAF scores fail to show that his PTSD symptoms warrant a 70 percent initial evaluation, prior to August 20, 2010. By definition, the GAF scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness, and does not include impairment in functioning due to physical (or environmental) limitations. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994) [hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2012). According to the GAF Scale, a score between 51 and 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers) (emphasis in original). A score between 41 and 50 represents serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job) (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. Thus, when taken together the Veteran's GAF scores (50, 51, 55, 45 and 55, chronologically) show that his PTSD resulted primarily in moderate symptoms. The Board finds it significant that the Veteran's GAF scores of 45 and 50 were balanced by scores of 51, 55 and 55. Taken together, these scores show that the Veteran's PTSD did not result primarily in severe symptoms prior to August 20, 2010. The Board is aware of the Veteran's reported complaints during the examinations. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's PTSD prior to August 20, 2010, has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which PTSD is evaluated. The observable symptoms that the Veteran describes simply do not satisfy the criteria for an initial evaluation in excess of 50 percent. As noted above, the clinical findings do not support a higher evaluation. With respect to an extraschedular evaluation, 38 C.F.R. § 3.321(b)(1) provides that ratings are to be based as far as practicable upon the average impairment of earning capacity. However, in those exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation can be provided commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for a given disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996). However, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). If so, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for the completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111 (2008). In the present case, there is no indication in the objective record that the schedular rating criteria are inadequate to rate the Veteran's PTSD prior to August 20, 2010. There has been no demonstration of an exceptional or unusual disability picture, to include marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. There is no suggestion that the rating criteria do not reasonably describe the Veteran's disability level and symptomatology. The Veteran describes symptoms that are addressed by the rating criteria. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was working during the relevant period, as shown by the VA examination reports. The evidence does not show that the Veteran's PTSD rendered him unable to secure and follow a substantially gainful occupation during the relevant period. In sum, the medical evidence demonstrates that the Veteran is not entitled to an initial evaluation for PTSD in excess of 50 percent, prior to August 20, 2010. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Earlier Effective Dates The Veteran contends that the effective date for the grants of service connection for CAD and diabetes mellitus should be earlier than August 29, 2006. He contends that February 1998 private laboratory results show diabetes mellitus, and an August 2005 private treatment report provides a diagnosis of CAD. 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, 188 (1996), aff'd, 106 F.3d 1577, 1581 (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). An application for VA compensation must generally be a specific claim in the form prescribed by the Secretary, i.e., VA Form 21-526. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). However, any communication received from the claimant (or specified individuals) that indicates an intent to apply for one or more VA benefits, and identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The words "claim" and "application" are defined as 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). When there is an approximate balance of positive and negative evidence regarding any matter material to the resolution of a claim, all reasonable doubt will be resolved in favor the claimant. 38 U.S.C.A. § 5107. Turning to the Veteran's diabetes mellitus, the July 2007 rating decision on appeal granted the Veteran presumptive service connection for diabetes based on exposure to herbicides during service in Vietnam. The rating decision assigned an effective date of August 29, 2006, based on the date the claim for service connection was received. The Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including diabetes. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, the record reflects that 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 v. Sec'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). 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). The Veteran's claim for service connection for diabetes based on herbicide exposure was received by VA on August 29, 2006, as indicated by the RO in the July 2007 rating decision on appeal. There is no indication in the claims file that any attempt was made, by the Veteran or any authorized representative, to seek service connection for diabetes prior to that date. Indeed, the Veteran does not argue that he filed a formal or informal claim for service connection for diabetes prior to August 29, 2006. Rather, he asserts that he is entitled to an earlier effective date based on February 1998 private laboratory results, received by VA in March 2008, that he asserts show diabetes mellitus. The Board notes that the February 1998 laboratory results do not provide a diagnosis of diabetes mellitus. Furthermore, the Veteran is not competent to state that they are evidence of diabetes mellitus, as that would fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Whether or not the February 1998 laboratory results are evidence of diabetes mellitus, the Veteran did not submit them to VA until after the rating decision on appeal. Moreover, the mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). While information contained in treatment records may constitute an informal claim, this is only appropriate where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. 38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). Neither of those circumstances was present in this case. In other words, the effective date of service connection is not assigned based on the date the claimant asserts that the disability appeared, or on the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service. Rather, the effective date is assigned based on the date that the application or claim upon which service connection was eventually awarded was received by VA. See 38 C.F.R. § 3.400; Lalonde, 12 Vet. App. at 382-83. The fact remains that the Veteran did not actually file a claim for service connection for diabetes mellitus prior to August 29, 2006. Because the Veteran's claim was filed many years after he was discharged from service in June 1969, 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. In this regard, regardless of the 1998 private laboratory results, there is no medical evidence showing a diagnosis of diabetes mellitus prior to 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, and the proper effective date is the date on which his claim was received, or August 29, 2006. See 38 C.F.R. §§ 3.114(a), 3.400. As the preponderance of the evidence is against an effective date prior to August 29, 2006, for the grant of service connection for diabetes, the Veteran's claim must be denied. 38 U.S.C.A. § 5107. Turning to the Veteran's CAD, the Veteran submitted his claim for service connection for a heart condition on August 29, 2006. This claim ultimately led to the July 2007 rating decision on appeal that granted service connection for CAD with an effective date of August 29, 2006. Applying the pertinent VA regulation (38 C.F.R. § 3.400(b)(2)(i)) to the facts, it is clear that an effective date earlier than August 29, 2006, is not warranted for the grant of service connection for CAD. The record contains no document dated before the August 29, 2006, claim that constitutes a claim for service connection for a heart condition. There is no evidence or statement dated before August 29, 2006, that can be construed as a formal or informal claim for service connection. Thus, the Board finds that an effective date prior to August 29, 2006, for the grant of service connection for CAD is not warranted. The Veteran asserts that he is entitled to an earlier effective date based on the August 2005 private diagnosis of CAD, received by VA in February 2007. In this regard, the Veteran did not submit the August 2005 private medical report until after submitting his August 29, 2006 claim. Moreover, the mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon, supra; Lalonde, supra. Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a), 3.155(a); Jones, supra. While information contained in treatment records may constitute an informal claim, this is only appropriate where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. 38 C.F.R. § 3.157(b); MacPhee, supra. Neither of those circumstances was present in this case. Again, the effective date of service connection is not assigned based on the date the claimant asserts that the disability appeared, or on the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service. Rather, the effective date is assigned based on the date that the application or claim upon which service connection was eventually awarded was received by VA. See 38 C.F.R. § 3.400; Lalonde, 12 Vet. App. at 382-83. The fact remains that the Veteran did not actually file a claim for service connection for a heart condition prior to August 29, 2006. Because the Veteran's claim was filed many years after he was discharged from service in June 1969, the effective date is 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. As the preponderance of the evidence is against an effective date prior to August 29, 2006, for the grant of service connection for CAD, status-post bypass surgery, the Veteran's claim must be denied. 38 U.S.C.A. § 5107. As the preponderance of the evidence is against the claims for earlier effective dates, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. ORDER An initial evaluation for PTSD in excess of 50 percent, prior to August 20, 2010, is denied. An effective date earlier than August 29, 2006, for the grant of service connection for diabetes mellitus, type II, is denied. An effective date earlier than August 29, 2006, for the grant of service connection for CAD, status-post bypass surgery, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs