Citation Nr: 1532036 Decision Date: 07/28/15 Archive Date: 08/05/15 DOCKET NO. 13-32 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an effective date prior to June 14, 2010, for the grant of service connection for peripheral neuropathy of the lower extremities. 2. Entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114(k), for loss of use of a creative organ. 3. Entitlement to SMC under 38 U.S.C.A. § 1114(s). REPRESENTATION Veteran represented by: Michael Miskowiec, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1968 to February 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that also on appeal were issues of a higher rating for posttraumatic stress disorder and a left wrist disability, as well as entitlement to specially adapted housing. However, after the RO issued statements of the case on these issues in September 2013, the Veteran through his representative notified the RO in statements in November 2013 that he did not desire to continue those appeals. Therefore, the only issues before the Board are the three listed on the first page of this decision. It is also noted that in April 2014, the Veteran's representative submitted additional argument with a supporting medical report, which was accompanied by a waiver of initial RO review of the evidence. The issue of entitlement to SMC under 38 U.S.C.A. § 1114(k), for loss of use of a creative organ, is being REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. In December 2000, the Veteran filed a claim of service connection for diabetes mellitus related to Agent Orange exposure; in a January 2002 rating decision, the RO granted service connection for diabetes mellitus, type II, associated with herbicide exposure, effective in December 2000. 2. On December 30, 2002, the Veteran was seen at the VA for complaints of burning pain in the feet and received an initial diagnosis of possible peripheral neuropathy; the December 30, 2002 medical record is constructively of record and is new and material evidence with respect to the compensation award for diabetes mellitus (it is considered to have been filed in connection with the December 2000 diabetes mellitus claim), thus rendering the January 2002 rating decision non-final. 3. In a March 2012 rating decision, the RO granted service connection for peripheral neuropathy of the lower extremities secondary to service-connected diabetes mellitus, and assigned an effective date of June 14, 2010 (date of a statement claiming peripheral neuropathy was due to diabetes mellitus). 4. Competent medical evidence shows that the complaints of neuropathic symptoms diagnosed tentatively as peripheral neuropathy in December 2002 were subsequently confirmed as diabetic peripheral neuropathy beginning in December 2006. 5. None of the Veteran's service-connected disabilities are rated as 100 percent disabling, and for the period of April 19, 2011 to November 14, 2011 he is not precluded from securing or following substantially gainful employment due to a single service-connected disability. CONCLUSIONS OF LAW 1. The proper effective date for the grant of service connection for peripheral neuropathy of the lower extremities is December 30, 2002, the date of a VA outpatient record showing symptoms later confirmed to be diabetic peripheral neuropathy which was constructively of record prior to the expiration of the appeal period with respect to the RO's award of service connection for diabetes mellitus. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(b), 3.400(b) (2014). 2. The criteria for entitlement to SMC under 38 U.S.C.A. § 1114(s) have not been met. 38 U.S.C.A. §§ 1114(s), 5107 (West 2014); 38 C.F.R. § 3.350(2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here, service connection for peripheral neuropathy of the lower extremities has been granted, and an effective date has been assigned, the underlying claim for service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the initial notice in January 2011 by letter (informing him of the evidence necessary to substantiate the claim for service connection) was intended to serve has been fulfilled. Once the claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision assigning an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an earlier effective date, following the grant of service connection for peripheral neuropathy of the lower extremities. Goodwin v. Peake, 22 Vet. App. 128 (2008). Regarding the remaining claim for SMC under the provisions of 38 U.S.C.A. § 1114(s), this too is a downstream issue stemming from the Veteran's previously-decided claims in March 2012 for higher ratings for ischemic heart disease and diabetes mellitus and for service connection for peripheral neuropathy of the extremities. As it is a downstream issue, it is clear that service connection has been granted and an initial disability ratings and effective dates have been assigned for the peripheral neuropathy disabilities. Thus, the service connection claims have been more than substantiated, they have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Furthermore, the Veteran has been issued a statement of the case (SOC) in November 2013, which also describes what evidence, if any, was to be provided by him and what evidence, if any, the VA would attempt to obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO also supplied the Veteran with the applicable regulations addressing earlier effective dates and SMC under 38 U.S.C.A. § 1114(s) in the SOC. Moreover, the Veteran has been represented by competent counsel, who has demonstrated in statements such as those found in November 2013 and April 2014, his understanding of what evidence was needed to prevail on the claims for an earlier effective date and SMC. Such actual knowledge serves to cure any defect in notice. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005). The requirements of the duty to notify under the VCAA have been fulfilled. VA also has a duty to assist claimants in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has been met as the RO obtained the Veteran's medical treatment records and arranged for the Veteran to undergo VA examinations in conjunction with his claims for increased ratings for heart disease and diabetes mellitus and for service connection for peripheral neuropathy, which is also pertinent to the issue of SMC. Given the nature of the earlier effective date claim, which is largely based on historical records, VA has not conducted contemporaneous medical inquiry in an effort to substantiate that claim on appeal. 38 U.S.C.A. § 5103A(d). The Veteran has not identified any additional records that would aid in substantiating the claims. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Earlier Effective Date for the Grant of Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran seeks an earlier effective date for a grant of service connection for peripheral neuropathy of the lower extremities. He initially claimed that the effective date should be November 24, 2006, when he filed a VA application for specially adapted housing assistance, in which he referred to having diabetic peripheral neuropathy and a heart related illness. He pointed out that the RO subsequently recognized his November 2006 filing as a claim for service connection for ischemic heart disease, and assigned the November 2006 date as the effective date for his award. He essentially requests that the RO accord the same recognition in regard to his peripheral neuropathy claim. The Veteran has also asserted, through his representative in an April 2014 statement, that within a year of the rating decision granting service connection for diabetes mellitus, a VA doctor noted in December 2002 that he had possible peripheral neuropathy, based on his complaints of burning in the feet. He claims that the December 2002 medical report should have been considered an informal claim for peripheral neuropathy of the lower extremities secondary to diabetes mellitus, which was not adjudicated until the March 2012 rating decision. He asserts that as the report was made within a year of the January 2002 rating decision that granted service connection for diabetes mellitus, it should have "kept the appeal period open on that claim pursuant to 38 C.F.R. § 3.156(b)." Based on this, he argues that the effective date of his award should be retroactive to December 2002. For the reasons that will be explained, the Board finds the Veteran's second argument for an effective date in December 2002 to be persuasive, and thereby grants the claim for an earlier effective date in this case. The law provides that the effective date for an award of service connection and disability compensation, based on an original claim, is 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 date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran was separated from active duty in February 1970. His initial compensation claim for any disability was not received until many years later in December 2000, when he asserted that he had diabetes mellitus related to Agent Orange exposure during service in Vietnam. Thus, the effective date in this case cannot be the day following his separation from active service, as the claim was not received within a year of February 1970. The effective date must be the date of receipt of the claim or the date entitlement arose, whichever is later. The Board turns to the question of when the Veteran's claim for service connection for peripheral neuropathy of the lower extremities was received. As will be shown, the claim is considered in connection with a claim of service connection for diabetes mellitus. In December 2000, the Veteran filed a claim of service connection for diabetes mellitus related to Agent Orange exposure. In a January 2002 rating decision, the RO granted service connection for diabetes mellitus, type II, associated with herbicide exposure, effective in December 2000. Then, less than a year later, the Veteran was seen at the VA on December 30, 2002 for complaints of burning pain in the feet. The VA outpatient record indicates that he was diagnosed with possible peripheral neuropathy. This was the initial documentation in the record of the condition of peripheral neuropathy. Many years elapsed before the Veteran, on November 24, 2006, filed VA Form 26-4555, Veteran's Application in Acquiring Specially Adapted Housing or Special Home Adaptation Grant. On that claim, in the remarks section he asserted that he had diabetic neuropathy. On June 14, 2010, the Veteran submitted a statement, indicating that he was filing a claim of service connection for peripheral neuropathy of the lower extremities secondary to his service-connected diabetes mellitus. In connection with this claim, the VA outpatient record of December 2002 was associated with the file. Following development of the claim, the RO in a March 2012 rating decision granted service connection for neuropathy of the right lower extremity associated with diabetes mellitus and for neuropathy of the left lower extremity associated with diabetes mellitus, assigning an effective date of June 14, 2010 for each of the disabilities. The Veteran disagreed with the effective date of the award. In a September 2013 statement of the case, the RO informed the Veteran that it was continuing its denial of an earlier effective date for service connection for peripheral neuropathy of the lower extremities because there was no confirmed diagnosis of peripheral neuropathy until a VA examination in January 2011. Upon review of the VA and private medical evidence, the Board finds that there is competent medical evidence showing a definitive diagnosis of diabetic peripheral neuropathy in regard to the lower extremities as early as December 2006. In a December 2006 physical examination report from Z. Kahwash, M.D., the Veteran was seen with uncontrolled diabetes. It was noted at that time that he experienced numbness and tingling and occasional burning in his feet. The assessment included diabetic peripheral neuropathy. Private records since then from Dr. Gharib note that the Veteran had developed peripheral neuropathy as a complication of diabetes. The VA examiner in January 2011 likewise diagnosed peripheral neuropathy of all extremities, noting that symptoms of such developed many years earlier, and finding that they were characteristic of diabetic peripheral neuropathy. Importantly, the Board finds that the private medical report in December 2006 serves to confirm the tentative diagnosis of peripheral neuropathy based on the Veteran's complaints of burning feet documented on the VA outpatient record of December 2002. Moreover, given that VA records are constructively of record when they are created, even if not physically (see Bell v. Derwinski, 2 Vet. App. 611, 613 (1992)), the December 2002 VA treatment record is deemed to have been part of the record within a year of - that is, prior to the expiration of the appeal period for - the January 2002 rating decision that awarded service connection for diabetes mellitus, of which the peripheral neuropathy condition is a complication. In other words, the December 2002 VA treatment record is considered to be "new and material evidence" filed in connection with the diabetes mellitus claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). The effect of the "receipt" of such new and material evidence is to render non-final the January 2002 rating decision, until such evidence is considered in connection with the diabetes mellitus claim originally received in December 2000. After a careful review of the evidence, the Board finds that the proper effective date for the award of service connection for peripheral neuropathy of the lower extremities is December 30, 2002, which is the date of the VA outpatient record on which the Veteran competently reported symptoms diagnosed as possible peripheral neuropathy that were later confirmed to be diabetic peripheral neuropathy. As earlier noted, the January 2002 rating decision was non-final by virtue of the subsequent "receipt" of the December 2002 VA outpatient record. Together with subsequent private and VA medical records, the December 2002 record reflects the initial documentation of diabetic peripheral neuropathy of the lower extremities. In other words, from December 30, 2002, the Veteran is shown to be entitled to compensation for peripheral neuropathy as a complication of diabetes mellitus. Upon reviewing the file back to the date of receipt of the Veteran's claim for service connection for diabetes mellitus in December 2000, there was no earlier record showing entitlement to diabetic peripheral neuropathy. In light of the foregoing, the earliest date legally permitted as an effective date for the award of service connection is the date of the VA outpatient record initially showing diabetic peripheral neuropathy of the lower extremities. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The Veteran's claim for service connection for diabetes mellitus was received in December 2000, which serves as the date of the Veteran's claim in this case; however, between December 2000 and December 2002, there is no evidence of a diagnosis of lower extremity peripheral neuropathy. Thus, the operative date for effective date purposes is the date entitlement arose on December 30, 2002, and not the date of receipt of the claim in December 2000. The Board observes that the rationale underpinning this decision is consistent with the RO's March 2012 rating decision in which it awarded service connection for diabetic peripheral neuropathy of the upper extremities. The assigned effective date for that award was on August 17, 2001, which is the date of a VA outpatient treatment record showing neuropathy in the arms and hands. For the above-stated reasons, December 30, 2002 is the correct effective date for the award of service connection for peripheral neuropathy of the lower extremities associated with diabetes mellitus. SMC under 38 U.S.C.A. § 1114(s) To establish entitlement to SMC under 38 U.S.C.A. § 1114(s), the evidence must show that a Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). As explained in Bradley v. Peake, 22 Vet. App. 280, 293 (2008), a total disability rating based on individual unemployability (TDIU) rating may satisfy the SMC requirement of a service-connected disability rated as total. However, the Court in Buie v. Shinseki, 24 Vet. App. 242, 250 (2011), clarified that a TDIU rating based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of "a service-connected disability" because that requirement must be met by a single disability. The Court added that VA's duty to maximize benefits requires VA to assess all of the claimant's disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to SMC under section 1114(s). Buie, 24 Vet. App. at 250-251. In applying Bradley and Buie to this case, the Board observes that the Veteran is not in receipt of a schedular 100 percent rating for any of his numerous service-connected disabilities, even though for the period before April 19, 2011 and for the period after November 14, 2011 he has a schedular 100 percent rating for his disabilities in combination. Moreover, it is noted that for the short period of April 19, 2011 to November 14, 2011, the RO granted entitlement to a TDIU rating in a September 2013 rating decision. However, the Board finds that the Veteran's entitlement to TDIU during this period was not based on a single service-connected disability, which would enable him to meet the criteria for an award of SMC under 38 U.S.C.A. § 1114(s) for this period. The evidence clearly establishes, as has been strongly asserted by the Veteran through his representative in statement in November 2013 and April 2014, that the Veteran was unemployable due to a combination of his service-connected disabilities, particularly diabetes mellitus and diabetic peripheral neuropathy in the upper and lower extremities. The Veteran's representative argued that the Veteran's diabetes and its complications should be considered as one disability under 38 C.F.R. § 4.16(a), but as noted above, the Court spoke on this point, holding that a TDIU rating must be based on a single service-connected disability when contemplating entitlement to SMC under 38 U.S.C.A. § 1114(s). Therefore, during the period in which the Veteran was assigned a TDIU, it is not shown that a single service-connected condition precluded him from securing or maintaining gainful employment. As the Veteran is not in receipt of a single service-connected disability rated as total, to include TDIU based on a single service-connected disability, the requirements for entitlement to SMC under 38 U.S.C.A. § 1114(s) are not met and the claims is denied. ORDER An earlier effective date of December 30, 2002 (but not earlier) is granted for the award of service connection for peripheral neuropathy of the lower extremities. The appeal seeking SMC under 38 U.S.C.A. § 1114(s) is denied. REMAND Regarding the claim for entitlement to SMC under 38 U.S.C.A. § 1114(k), for loss of use of a creative organ, the Veteran initially claimed that he has erectile dysfunction that is attributable to his service-connected diabetes mellitus. He underwent VA diabetes mellitus and genitourinary examinations in 2011 to address the etiology of his erectile dysfunction, and the examiners concluded that his erectile dysfunction is not related to diabetes mellitus but to his condition of hypogonadism. However, the examiners did not discuss whether the Veteran's erectile dysfunction may be related, at least in part, to - or aggravated by - other factors such as prescription medication for service-connected disability. In an April 2014 statement, the Veteran's representative raised the possibility that the Veteran's heart medication, metoprolol, caused his erectile dysfunction. He submitted a medical extract obtained via the internet that indicates metoprolol (Lopressor) can cause impotence. Private records in the file indicate that the Veteran was taking Lopressor as early as October 2001 and that he continued to take it at the time he was diagnosed with erectile dysfunction in December 2006. Thus, the Board finds that another medical opinion is necessary in order to consider the new assertions raised by the Veteran. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for a medical opinion (with examination only if deemed necessary by the opinion provider) which addresses the most likely etiology for the Veteran's diagnosed erectile dysfunction. The Veteran's file must be reviewed by the opinion provider. Based on review of the record, please furnish an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diagnosed erectile dysfunction is caused by, or aggravated by, his service-connected ischemic heart disease, to include medications taken for it. Aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the examiner should indicate, to the extent possible, the approximate baseline level of disability before the onset of the aggravation. In providing the opinion, the examiner is asked to consider private and VA medical records including the VA (diabetes mellitus and genitourinary) examination reports dated in November 2011. The private treatment records show that the Veteran was taking Lopressor as early as October 2001 and that he was diagnosed by Dr. Kahwash with erectile dysfunction in December 2006. In the VA examination reports, the examiners concluded that the Veteran's erectile dysfunction was due to hypogonadism, but there did not seem to be any consideration of other etiological factors such as prescription medication. The examiner must include rationale with all opinions, and cite to supporting factual data and medical literature where appropriate. 2. After the development requested above is completed, the AOJ should readjudicate the claim of entitlement to SMC under 38 U.S.C.A. § 1114(k), for loss of use of a creative organ. If it remains denied, the AOJ should issue a supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs