Citation Nr: 1323828 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 10-11 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to an effective date prior to April 14, 2006, for the grant of service connection for diabetes mellitus, type II. Entitlement to an effective date prior to October 30, 2007, for the grant of service connection for erectile dysfunction. Entitlement to an effective date prior to October 30, 2007, for the grant of service connection for peripheral motor polyneuropathy of the bilateral lower extremities (peripheral neuropathy). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from June 1967 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from two RO rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In February 2008, the RO granted a claim for service connection for diabetes mellitus, effective April 14, 2006. In September 2008, the RO granted service connection for peripheral neuropathy and erectile dysfunction, effective October 30, 2007. FINDINGS OF FACT 1. The Veteran submitted claims for service connection for diabetes mellitus and peripheral neuropathy received on November 17, 2005; the evidence establishes this as the date of the claims and their entitlement. 2. The RO denied the claims for service connection for diabetes mellitus and peripheral neuropathy on April 4, 2006. 3. The RO received an undated private treatment record showing entitlement arose for diabetes mellitus on April 14, 2006; the April 4, 2006 RO rating was not final. 4. On October 30, 2007, the RO received a claim for service connection for erectile dysfunction; claims for service connection for diabetes mellitus and peripheral neuropathy were still pending. 5. On February 13, 2008, the RO granted a claim for service connection for diabetes mellitus, effective April 14, 2006, and deferred claims for service connection for peripheral neuropathy and erectile dysfunction. 6. On September 18, 2008, the RO granted claims for service connection for peripheral neuropathy and erectile dysfunction, effective October 30, 2007 (the date of claim for erectile dysfunction). CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date of November 17, 2005, for the grant of service connection for diabetes mellitus have been met. 38 U.S.C.A. § 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.156(b), 3.400 (2012). 2. The criteria for assignment of an effective date prior to October 30, 2007, for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C.A. § 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(b), 3.400. 3. The criteria for assignment of an effective date of November 17, 2005, for the grant of service connection for peripheral neuropathy have been met. 38 U.S.C.A. § 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). Proper Veteran's Claims Assistance Act (VCAA) notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1) (2012). The Veteran's earlier effective date claim arises from his disagreement with the assignment of an effective date following the grants of service connection for diabetes mellitus in a February 2008 rating decision and peripheral neuropathy and erectile dysfunction in a September 2008 rating decision. 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. The Veteran received VCAA notice in December 2005 and March 2008. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). All proper development has been completed. Effective Dates and Service Connection The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012) (emphasis added). More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). Similarly, for presumptive service connection under 38 C.F.R. §§ 3.307, 3.309, the effective date is the date entitlement arose, if claim is received within one year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(ii) (2012) (emphasis added). Where the requirements for service connection are met during service, the effective date will be the day following separation from service if there was continuous active service following the period of service on which the presumption is based and a claim is received within one year after separation from active duty. Id. For pending claims, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). In other words, if a veteran submits evidence after a rating decision, that decision does not become final until the RO or agency of original jurisdiction acknowledges the evidence and re-adjudicates the claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2012); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that continuity of symptomatology can establish a relationship between a current disability and service only if that disability is a chronic disease listed in 38 U.S.C.A. § 1101). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In adjudicating this case, the Board must discuss competency and credibility. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(2) (2012). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Due consideration shall be given to the places, types, and circumstances of a veteran's service as shown by such veteran's service record, the official history of each organization in which a veteran served, a veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a)(1) (West 2002 and Supp. 2012). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to an herbicide agent, such as Agent Orange. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2012). Certain diseases have been associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service, including, among others, diabetes mellitus. 38 C.F.R. § 3.309(e) (2012). The Veteran's DD 214 does show service in Vietnam; all he had to show to substantiate a claim for service connection for diabetes mellitus was a diagnosis. Service connection may also be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Effective Date of Diabetes Mellitus On November 17, 2005, the Veteran filed an original claim for service connection for diabetes mellitus and peripheral neuropathy. He stated he had no prior claims filed at VA. He asserted he had been treated at VA recently, but when a search for VA medical records was performed only an April 1991 VA chest X-ray was found. On April 4, 2006, the RO denied the claim for service connection for diabetes mellitus and peripheral neuropathy stating there was no current diagnosis of these disabilities. The notice letter to this decision is dated April 11, 2006. On April 14, 2006, partial private hospital discharge instructions were received; referring to a diabetes mellitus diagnosis (the records themselves are undated). The Board finds that because the April 14, 2006, hospital record was received after the April 4, 2006 RO rating, the rating was not final but the claim was still pending. See 38 C.F.R. § 3.156(b). On October 30, 2007, the Veteran filed a claim to "reopen" the already pending claim for service connection for diabetes mellitus and peripheral neuropathy, along with an original claim for erectile dysfunction. In February 2008, the RO granted the claim for service connection for diabetes mellitus and assigned an effective date of April 14, 2006 (peripheral neuropathy and erectile dysfunction were deferred). In October 2008, the Veteran filed a notice of disagreement, stating that the date for diabetes mellitus should be November 17, 2005, the date his claim was submitted. As stated, here the effective date is the date of claim or date entitlement arose, whichever is later under 38 C.F.R. § 3.400(b)(2)(i) or (ii). Here, because of § 3.156(b) the Board finds the date of claim and the date of entitlement was November 17, 2005, because the Veteran was competent and credible in his report of his current diagnosis of diabetes mellitus which was later confirmed by the private record showing a diagnosis of diabetes mellitus on April 14, 2006. With his past service in Vietnam, all the Veteran needed to do was show a diagnosis since a nexus was presumed. 38 U.S.C.A. §§ 1110, 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Since November 17, 2005, is both the date of entitlement and date of the claim, an earlier effective date for diabetes mellitus is granted to that date. Effective Date of Erectile Dysfunction As stated, the original claim for erectile dysfunction was received by VA on October 30, 2007. A VA primary care record shows the Veteran was first diagnosed with erectile dysfunction in September 2007. In May 2008, the Veteran had a VA examination; the report shows a positive nexus for peripheral neuropathy and erectile dysfunction. In September 2008, the RO granted service connection and assigned an effective date of October 30, 2007 for both disabilities. In October 2008, the Veteran stated in his notice of disagreement that the date for erectile dysfunction should be November 17, 2005, the date he stated his original claim was submitted. The Board finds the evidence shows the Veteran did not submit a claim for erectile dysfunction in November 2005; the record shows the Veteran submitted his claim for erectile dysfunction on October 30, 2007. There is no mention of erectile dysfunction on the November 17, 2005 claim form. The date entitlement arose is actually later than the currently assigned date-entitlement arose in May 2008 when the VA examiner stated that the erectile dysfunction was secondary to the already service-connected diabetes mellitus. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. Regardless, there is no basis to assign an earlier date than October 30, 2007 based on 38 C.F.R. § 3.400(b)(2)(i). An earlier effective date for the grant of service connection for erectile dysfunction is denied. Effective Date of Peripheral Neuropathy As stated, on November 17, 2005, the Veteran filed his claim for service connection for peripheral neuropathy. In April 2006, the RO denied a claim for service connection for diabetes mellitus and peripheral neuropathy because there was no diagnosis and only one VA record in file (a chest X-ray from 1991). Although the April 14, 2006, hospital record (received after the April 4, 2006 RO rating) only addressed diabetes mellitus and not peripheral neuropathy, the Board finds the rating was not final but the claim was still pending for the claim for service connection for peripheral neuropathy as well. This is because peripheral neuropathy was obviously being claimed as secondary to diabetes mellitus. So as long as evidence showed that the claim for service connection for diabetes mellitus was still in play so was the claim for service connection for peripheral neuropathy. See 38 C.F.R. §§ 3.156(b), 3.310(a); Allen, 7 Vet. App. at 448. An October 30, 2006 VA primary care record showed that while stating the diagnosis for diabetes mellitus, the treating physician offered the Veteran medication for neuropathy (which he refused). The clear implication was that the diabetes mellitus and peripheral neuropathy were related. After the Veteran filed his "claim to reopen" peripheral neuropathy on October 30, 2007, he attended a May 2008 VA examination. The report found a positive nexus between diagnosed peripheral neuropathy and erectile dysfunction. In September 2008, the RO granted a claim for service connection for peripheral neuropathy and for erectile dysfunction, effective October 30, 2007, the date of the "reopened claim." But, as explained, the Board finds the claim was pending since November 17, 2005, and that is the date of the claim. The Board finds that the effective date should be the date that entitlement arose here, which, like the claim for service connection for diabetes mellitus, is also the date of the claim, November 17, 2005. The Board finds that the Veteran was competent and credible in his report of his current diagnosis of diabetes mellitus along with its associated symptoms of numbness and tingling which was later confirmed to be peripheral neuropathy in October 2006 and May 2008. The elements to establish service connection were met at the time of the claim. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. As a result, an earlier effective date of November 17, 2005, is granted for the claim for service connection for peripheral neuropathy. ORDER Entitlement to an effective date of November 17, 2005, for the grant of service connection for diabetes mellitus, type II, is granted. Entitlement to an effective date prior to October 30, 2007, for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date of November 17, 2005, for the grant of service connection for peripheral neuropathy is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs