Citation Nr: 1331447 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 11-18 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to an effective date earlier than August 10, 2010, for the assignment of a 40 percent rating for diabetes mellitus (DM) type 2. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which increased the Veteran's disability rating for DM to 40 percent, effective August 10, 2010. The Veteran filed a NOD with the effective date assigned for the 40 percent disability rating, and timely perfected his appeal in June 2011. Additionally, this matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision, which denied service connection for sleep apnea. The Veteran filed a notice of disagreement (NOD) with this determination in December 2008, and timely perfected his appeal in August 2009. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in June 2011. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. During the June 2011 Travel Board hearing, the Veteran indicated his desire to withdraw his appeal seeking service connection for sleep apnea. The Board received such request prior to the promulgation of a decision. 2. It is factually ascertainable that the Veteran met the requirements for the higher 40 percent disability rating for service-connected DM as of November 1, 2006, the date indicated in the July 2010 VA physician letter. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of entitlement to service connection for sleep apnea have been met. 38 U.S.C.A. § 7105(b)(2),(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for an earlier effective date of November 1, 2006, for a higher 40 percent disability rating for DM have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In June 2011, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Veteran stated that he wished to withdraw the issue of service connection for sleep apnea. Because this statement was later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as the Veteran's withdrawal of the Substantive Appeal as to that issue. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The appellant has withdrawn the appeal of the issue of entitlement to service connection for sleep apnea, and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. As such, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for sleep apnea, and it is dismissed. II. Duty to Notify and Assist The VA has a duty 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by way of a letter sent to the Veteran in December 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claims for benefits, such as obtaining VA and private medical records, and providing him with VA examinations in January 2007, March 2008, October 2009, and September 2010. The Veteran has not indicated that he has received additional treatment for DM. The Board thus concludes that there are no additional treatment records outstanding with respect to this claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). III. Earlier Effective Date The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date for an increase will be the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400. The laws and regulations pertaining to the effective date for an increase have been interpreted as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2) ; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2) ; VAOPGCPREC 12- 98 (1998). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran contends that he is entitled to an effective date prior to August 10, 2010, for the assignment of a 40 percent disability rating for DM. As outlined below, the evidence of record demonstrates that an effective date of November 1, 2006, is warranted for the assignment of a 40 percent disability rating. However, an effective date prior to November 1, 2006, for the assignment of a 40 percent disability rating is not warranted. The Veteran was originally granted service connection for DM in an August 2005 rating decision. A 20 percent disability rating was assigned in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4.119, Diagnostic Code (DC) 7913 (2012), effective March 3, 2013. The Veteran did not appeal the assigned disability rating within a year of the August 2005 rating decision. As such, that decision is now final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran filed an increase rating claim for DM on December 5, 2006. In June 2008, July 2008, July 2010, and October 2010 rating decisions, the RO continued a 20 percent disability rating for the Veteran's service-connected DM. Subsequently, in a November 2010 rating decision, the RO increased the Veteran's disability rating to 40 percent, effective August 10, 2010. A timely notice of disagreement as to the effective date of the 40 percent disability rating was received by VA in December 2010. As noted above, an effective date for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Based on the evidence of record, the Board finds that an effective date of November 1, 2006, for the assignment of a 40 percent disability rating for DM is warranted. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913 (2012). The Veteran has consistently reported since his increased rating claim in December 2006 that his DM symptoms worsened and he was now prescribed insulin, on a special diet, and his activities were regulated due to insulin. In an October 2008 statement, the Veteran reported that he had a restricted diet given to him by the VA. Additionally, he had to carry glucose tablets on him at all times because his sugar level would drop dramatically whenever he walked. He did not have a car, therefore walking was his only means of getting around and it was now limited due to his diabetic condition. Additionally, the Veteran's VA treating physician noted that the Veteran was diagnosed with DM, type II and had been on insulin therapy since November 2006. He was also restricted to moderate physical activities and was following a diabetic and low salt diet. Further, the Veteran testified at a Travel Board hearing that he had the same diabetes issues in 2006 that he did in 2010, when his disability rating was increased to 40 percent. Further, he stated that his diabetes worsened and a lot of changes were made to try to moderate it. He also reported that in 2006, he was put on a specialized diet and using insulin impeded his physical abilities. In this regard, the evidence of record demonstrates that the Veteran has diabetes mellitus requiring insulin, restricted diet, and a regulation of activities as of November 1, 2006. Accordingly, the Board finds that the proper effective date for the assignment of a 40 percent disability rating for DM is November 1, 2006, the date specified in the VA treating physician's letter. However, the evidence of record demonstrates that an effective date prior to November 1, 2006, for the assignment of a 40 percent disability rating is not warranted. The record contains no evidence between December 5, 2005 (one year prior to receipt of the Veteran's claim for an increased rating) and November 1, 2006, that reflects a 40 percent rating is warranted for DM. As such, an effective date prior to November 1, 2006, for the assignment of a 40 percent schedular rating for DM is not warranted. When viewing all of the evidence in a light most favorable to the Veteran, the Board finds that an effective date of November 1, 2006, is warranted for the assignment of a 40 percent schedular rating for DM. The appeal concerning the earlier effective date issue is granted. ORDER The appeal as to the matter of entitlement to service connection for sleep apnea is dismissed. Entitlement to an earlier effective date of November 1, 2006 for the assignment of a 40 percent rating for diabetes mellitus (DM) type 2 is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs