Citation Nr: 1335271 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 05-24 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for diabetes type II with renal involvement. 2. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for peripheral neuropathy of the right lower extremity. 3. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board observes that the claims file does not contain a VA Form 9, Appeal to Board of Veterans' Appeals, with respect the earlier effective date issues in response to the January 14, 2013 statement of the case. Nonetheless, the claims file contains VA Form 646 dated March 22, 2013 indicating that the Veteran wants to appeal the issues of an earlier effective date for diabetes with renal involvement and bilateral peripheral neuropathy. This form can be construed as a substantive appeal in lieu of the VA Form 9. The postmark date of the VA Form 646 is not of record. VA regulations provide that "[i]n the event that the postmark is not of record, the postmark date will be presumed to be 5 days prior to the date of receipt of the document by the Department of Veterans Affairs." 38 C.F.R. § 20.305(a) (2013). Unfortunately, there is no indication of the date the RO received the VA Form 646. Nevertheless, the RO noted in a March 2013 report of contact to the Veteran's representative that the case was ready to be certified to the Board and requested that they complete a VA Form 646 or equivalent. After the VA Form 646 was associated with the claims file, the RO certified the issues of entitlement to an earlier effective date for diabetes with renal involvement and peripheral neuropathy for appeal and the Board received a written brief presentation from the Veteran's representative in September 2013. The U.S. Court of Appeals for Veterans Claims (Court) has held that the filing period for a substantive appeal in a claim for VA benefits is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (as the RO had never addressed the issue of timeliness in the SOC and the Veteran was not informed that there was a timeliness issue until his claim was before the Board, the Court determined that the RO had essentially waived any objections it might have offered to the timeliness, and had implicitly accepted the Veteran's appeal). Furthermore, the Court has held that, as with the timeliness of a Substantive Appeal, in determining the adequacy of a Substantive Appeal, "the Board's use of a jurisdictional, i.e., nondiscretionary, analysis [is] not appropriate," and that VA may waive "any ... pleading requirements on the part of the appellant." Percy, 23 Vet. App. at 47, citing Gomez v. Principi, 17 Vet. App. 369, 372-73 (2003). In this case, the Board concludes that referring the case to the Veteran's representative for a VA Form 646 and certifying the appeal to the Board indicates that these issues are still on appeal. Therefore, the Board will adjudicate the issues of entitlement to an earlier effective date for diabetes with renal involvement and peripheral neuropathy of the bilateral lower extremities. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The claims file does not contain any communication or evidence received prior to January 13, 2004, which could be interpreted as an informal or formal claim for entitlement to service connection for diabetes and peripheral neuropathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 13, 2004 for the grant of service connection for diabetes type II with renal involvement have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400 (2013). 2. The criteria for an effective date prior to January 13, 2004 for the grant of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400 (2013). 3. The criteria for an effective dated prior to January 13, 2004 for the grant of service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or 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); 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. 38 C.F.R. § 3.159(b). 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); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is challenging the effective dates assigned following the September 2004 grant of service connection for diabetes type II with retinal involvement and peripheral neuropathy of the bilateral lower extremities. The U.S. Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Goodwin v. Peake, 22 Vet. App. 128 (2008); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Additionally, the Veteran has not alleged and the record does not show that there is outstanding evidence relevant to the issues of entitlement to an earlier effective date. All of the pertinent information is of record. As such, the Board finds the VA's duty to assist in this case has been met. Based on the foregoing, there is no prejudice to the Veteran in proceeding to consider his claims for this benefit. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Criteria and Analysis The Veteran was granted service connection for diabetes type II with retinal involvement, evaluated as 10 percent disabling, effective January 13, 2004, peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling, effective January 13, 2004, and peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, effective January 13, 2004. The Veteran contends that the effective date for the grants of service connection should be September 25, 2003, which was the date he had a thorough examination and he advised a VA physician of all of his physical complaints. 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 (West 2002). 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 the later. 38 C.F.R. § 3.400 (2013). In cases involving an original service connection claim, the effective date will be 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, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2013). 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 VA. 38 U.S.C.A. § 5101(a) (West 2002). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2013). An informal claim must identify the benefit sought. 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) (2010); Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. The evidence of record shows that the VA Jacksonville Satellite Clinic received the Veteran's formal claim for service connection on January 13, 2004. The claim was forwarded to the RO and the RO received the claim on January 26, 2004. It appears that the Veteran did not specifically file a claim for service connection for peripheral neuropathy of the bilateral lower extremities, but it was granted in the September 2004 rating decision as the evidence established that it was related to his service-connected diabetes type II with renal involvement. There is no communication or action from the Veteran in the claims file prior to January 13, 2004 that indicates an intent by the Veteran to apply for service connection for diabetes and/or peripheral neuropathy of the bilateral lower extremities. The Board notes that the Veteran contends that a VA treatment record dated September 25, 2003 should be the effective date of his claims as he discussed all of his complaints and he had a thorough examination. See October 2004 notice of disagreement. The Veteran indicated in the October 2004 notice of disagreement that he thought he was making a claim to be considered for service connection at that time as the clinician informed him that he should hear from the VA Regional Office regarding his complaints. VA treatment records show that the Veteran was provided with an Agent Orange examination on September 25, 2003. The Veteran was diagnosed with on-insulin-dependent diabetes mellitus (type II). The physician noted that the Veteran was inclined to attribute his primary complaint to Agent Orange exposure. The September 25, 2003 VA treatment record does not reveal any intent on behalf of the Veteran that he was seeking service connection for diabetes or peripheral neuropathy of the bilateral lower extremities. An intent to apply for benefits is an essential element of any claim, whether formal or informal. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir.2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). It follows that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. The Court has held that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Although there are two recognized exceptions to this general rule, those exceptions are applicable only when an underlying claim has been awarded and the medical records demonstrate that the veteran's disability has increased, or when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. See 38 C.F.R. § 3.157(b) (2010); see also Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Lalonde v. West, 12 Vet. App. 377, 381 (1999). Neither of those exceptions applies in this case. In conclusion, the controlling laws and regulations state that an award of disability compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The formal application for benefits received by VA on January 13, 2005 and by the RO on January 26, 2003 is the earliest document in the record that satisfies the requirement for a formal or informal claim for disability compensation for diabetes. See Brokowski v. Shinseki, 23 Vet. App. 79, 84-85 (2009); 38 C.F.R. §3.159(a)(3). The RO construed this claim broadly to include any disabilities that were found to be secondary to the Veteran's diabetes in the evidence then of record. The evidence of record, viewed in conjunction with the pertinent laws and regulations, provide no basis for an award of service connection for diabetes and/or peripheral neuropathy of the bilateral lower extremities prior to January 13, 2004. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER 1. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for diabetes type II with renal involvement is denied. 2. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. 3. Entitlement to an effective date earlier than January 13, 2004 for the grant of service connection for peripheral neuropathy of the left lower extremity is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs