Citation Nr: 1333916	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO. 09-03 942	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an effective date prior to August 11, 2006 for the grant of service connection for Type II diabetes mellitus (diabetes mellitus).


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Lindio, Counsel






INTRODUCTION

The Veteran served on active duty from May 1964 to May 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. At that time, the RO granted service connection for diabetes mellitus associated with herbicide exposure and assigned a 20 percent evaluation, effective August 11, 2006.

In August 2007, the Veteran filed a timely notice of disagreement (NOD) contesting the assigned effective date and alleging he was entitled to an effective date of at least eight years prior to his August 2006 effective date. The RO issued a Statement of the Case (SOC) in January 2009, denying the Veteran's downstream claim for an earlier effective date. The Veteran properly appealed that claim by submitting a February 2009 substantive appeal.

In such February 2009 substantive appeal (VA Form 9), the Veteran indicated that he wanted a Board hearing before a Veterans Law Judge sitting at the RO.  However, in a subsequent communication, the Veteran withdrew his request for a Board hearing.  38 C.F.R. § 20.704(e) (2013).

The Board notes that in a January 2009 rating decision, the RO denied increased ratings for peripheral neuropathy of the bilateral upper and lower extremities. Although the February 2009 substantive appeal included a report, by the Veteran, of some of his diabetes mellitus symptoms for the upper and lower extremities, those statements did not express a desire to appeal or a disagreement with the January 2009 denials.  As such, those statements cannot be construed as a valid NOD with regards to the January 2009 rating decision.  Moreover, he did not indicate that he was filing a claim for increased ratings for such disabilities at such time.  However, the Veteran is advised that, if he wishes to file a claim for increased ratings for his peripheral neuropathy of the bilateral upper and lower extremities, to so inform the RO.

The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. 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 issue on appeal. 


FINDINGS OF FACT

1.  VA received the Veteran's initial claim for service connection for diabetes mellitus on September 6, 2001, after the May 8, 2001 effective date of the liberalizing law that added diabetes mellitus as a disease presumptively due to in-service exposure to herbicides. The Veteran did not receive a medical diagnosis of diabetes mellitus until 2006. 

2.  In a final May 2002 rating decision, the RO denied the Veteran's claim of entitlement to service connection for diabetes mellitus on the basis that he did not have the required diagnosis of diabetes mellitus. 

3.  VA first received the Veteran's petition to reopen his claim of entitlement to service connection for diabetes mellitus on August 11, 2006. 

4.  VA received no communication that constitutes a formal or informal claim for service connection for diabetes mellitus between the issuance of the May 2002 rating decision and the receipt of the August 11, 2006 claim. 


CONCLUSION OF LAW

The criteria for an effective date prior to August 11, 2006, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.114, 3.151, 3.155, 3.159, 3.400, 3.816 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

The Board observes that the Veteran has appealed with respect to the propriety of the effective date assigned for the grant of service connection for diabetes mellitus. VA's General Counsel has held that no VCAA notice is required for such a downstream issue. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the RO granted the Veteran's claim for service connection for diabetes mellitus and assigned an initial rating of 20 percent, effective August 11, 2006, in the July 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the effective date of the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Moreover, as the Veteran has been assigned the earliest possible effective date under VA regulations, i.e., the date VA received his application to reopen his claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). 

In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II. Analysis

The Veteran essentially contends that an effective date of eight years or more prior the August 11, 2006 effective date granted by the RO for service connection for diabetes mellitus is warranted.  In his August 2007 NOD, he reported that he has had diabetes mellitus for at least eight years.  He further contended that such a diagnosis would have arisen had he received proper testing for diabetes mellitus.

In the instant case, the RO granted presumptive service connection for diabetes mellitus based on exposure to herbicides during service in Vietnam. It assigned an effective date of August 11, 2006 - the date VA received the Veteran's claim to reopen the previously denied claim for service connection for diabetes mellitus. 

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 mellitus.  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 were also set forth that are not pertinent to this appeal.

In this case, the record reflects that the RO found that the Veteran had served in Vietnam and subsequently granted presumptive service connection for diabetes based on exposure to herbicides during that service.  As such, the Veteran 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). 

Under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later.  Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. See also 38 U.S.C.A. § 5110.  See also Waddell v. Brown, 5 Vet. App. 454, 456 (1993) (by statute and regulation, the effective date for service connection based on a reopened claim cannot be the date of receipt of an original claim which was previously denied).

VA received the Veteran's initial claim of entitlement to service connection for diabetes mellitus on September 6, 2001.  In a May 2002 rating decision, the RO denied service connection for diabetes mellitus.  The RO found, after considering all available medical records, that the Veteran did not have a diagnosis of diabetes mellitus.  Importantly, the record, to include numerous VA medical records, failed to demonstrate that the Veteran had a diagnosis of diabetes mellitus.  Indeed, an August 2001 VA medical record specifically found "[n]o evidence of early diabetes".  Similarly, a September 2001 VA medical record documents that although the Veteran's two sisters had diabetes mellitus, the Veteran did not carry such a diagnosis.  

The Veteran did not file a NOD with the May 2002 rating decision and VA did not receive any new and material evidence, or indeed any evidence, prior to the expiration of the appeal period.  As such, that denial of service connection became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2002) [(2013)]. 

Following the final disallowance in May 2002, the Veteran did not provide any further communication regarding a claim for service connection for diabetes mellitus until August 11, 2006 - the date VA received his claim to reopen the claim for service connection for diabetes mellitus. 

As previously noted, following the receipt of such application, the RO granted, in a June 2007 rating decision, service connection for diabetes mellitus, with a 20 percent disability rating, effective August 11, 2006. 

Hence, there is simply no basis to assign an effective date prior to August 11, 2006 - the date VA first received the Veteran's claim for service connection following the final May 2002 denial of service connection for diabetes mellitus. 

The Veteran contends that an earlier effective date should be granted based on when he alleges his diabetes mellitus began (though it was not diagnosed).  However, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or 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 consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).
    
In the instant case, the Veteran's effective date can be no earlier than the date of receipt of his reopened claim. See 38 C.F.R. 3.400(q), (r).  Therefore, based on the above-stated facts and regulations, the Board finds that the correct date for the grant of service connection for diabetes mellitus is August 11, 2006, the date VA received the Veteran's application to reopen his claim of entitlement to service connection for diabetes mellitus following the RO's final May 2002 denial.  As such, the Veteran is not entitled to an earlier effective date and his claim must be denied.   



ORDER

An effective date prior to August 11, 2006 for the grant of service connection for Type II diabetes mellitus is denied.



____________________________________________
A. JAEGER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs