Citation Nr: 1333491 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-26 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to July 2, 2007, for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction and hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, finding clear and unmistakable error in the previously assigned effective date of May 7, 2007, and assigning an effective date of July 2, 2007, instead. FINDINGS OF FACT 1. VA received a claim from the Veteran seeking service connection for diabetes mellitus, type II, on July 2, 2007. 2. The record contains no communication from the Veteran that was received prior to July 2, 2007, that could reasonably be construed as a claim for service connection for diabetes mellitus, type II, with erectile dysfunction and hypertension. CONCLUSION OF LAW The criteria for establishing entitlement to an effective date prior to July 2, 2007, for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction and hypertension, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran 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 RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, the Veteran was provided with a notice letter dated August 2007 that specifically informed him of how VA determines the proper effective date. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the VA has obtained the records of the Veteran's outpatient treatment with VA. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained and the Veteran has not alleged that he in fact submitted a claim for service connection prior to July 2, 2007. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran contends that he is entitled to an effective date prior to July 2, 2007, for the grant of service connection for diabetes mellitus with erectile dysfunction and hypertension. However, as outlined below, the facts in this case are not in dispute and there is no legal basis upon which the Veteran's claimed benefit may be granted. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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 from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. The record clearly reflects that VA received a claim from the Veteran seeking service connection for diabetes mellitus on July 2, 2007. This fact has not been disputed by the Veteran. The record contains no statement or communication from the Veteran or his representative prior to July 2, 2007, that can reasonably be interpreted as a formal or informal claim for diabetes mellitus. As such, the earliest effective date permissible by law is July 2, 2007. See 38 C.F.R. § 3.400. Furthermore, this claim was not received within one year of the Veteran's separation from active duty. For claims of entitlement to service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is filed within one year of discharge from service. 38 C.F.R. § 3.400)b)(2)(i) (2013). In the present case, the Veteran's claim was received more than 35 years after his separation from active duty in 1971. Finally, 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). A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including diabetes. 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). The record reflects that the Veteran served in Vietnam and that he was granted presumptive service connection for diabetes mellitus based on exposure to herbicides during this service. As such, he is a Nehmer class member. However, the Veteran was not denied service connection for diabetes between September 25, 1989, and May 3, 1989. Likewise, he did not submit a claim for service connection for such a 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, an earlier effective date is not warranted under these regulations. In his June 2010 appeal to the Board, the Veteran essentially argued that because he had medical evidence of treatment for diabetes mellitus in October 2002, this would suggest that he actually had diabetes mellitus prior to May 8, 2001. The Veteran then suggested that he would be entitled to service connection under 38 C.F.R. § 3.816. However, as discussed in the preceding paragraph, the Veteran would still have had to have submitted a claim of entitlement to service connection for diabetes mellitus prior to May 8, 2001. In the present case, no claim was received until July 2, 2007. The Veteran has also argued that he is entitled to service connection as of 2002 because VA treatment records show he was diagnosed with diabetes mellitus as of that time. This argument is without merit. The effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. It is clear from the record that the Veteran's claim was received later than 2002, on July 2, 2007. Merely receiving medical treatment for a disorder prior to this date does not qualify as a claim, as it does not demonstrate belief of entitlement to a benefit. See 38 C.F.R. § 3.1(p). Finally, the Board recognizes that the Veteran reported that he tried to file a claim in November of 2002, but that he did not because VA officials told him that it would not be granted. While it is regrettable if any such information was received by the Veteran, this fact would not be relevant to his current claim. Regardless of the rationale for the Veteran opting to not file a claim in 2002, the facts remain that he did not file a claim prior July 2, 2007. This fact is not in dispute. Therefore, the law is quite clear in this case and an effective date prior to July 2, 2007, is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an effective date prior to July 2, 2007, for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction and hypertension, must be denied. ORDER The claim of entitlement to an effective date prior to July 2, 2007, for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction and hypertension, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs