Citation Nr: 1624570 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 11-23 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than April 7, 2009, for the grant of service connection for diabetes mellitus, type II. 2. Entitlement to service connection for colon cancer. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A March 2015 rating decision denied service connection for colon cancer. The Veteran filed a timely notice of disagreement on the appropriate form in April 2015. The issue of service connection for colon cancer is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's original claim for service connection for diabetes was received on February 15, 2006. 2. In a rating decision dated January 29, 2007, the RO denied service connection for diabetes and the Veteran did not appeal that decision. 3. In September 2007, VA treatment records were received showing treatment for and diagnosis of diabetes. 5. On April 7, 2009, the RO received the Veteran's reopened claim for service connection for diabetes. 6. A VA treatment record dated March 10, 2006 provided a diagnosis of diabetes. CONCLUSION OF LAW The criteria for an effective date of March 10, 2006 for the grant of service connection for diabetes have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(b), 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Here, the Veteran's effective date claim arises from his disagreement with the effective date that was assigned following the grant of service connection for diabetes. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) ((section 5103(a) notice is no longer required after service-connection is awarded). Concerning the duty to assist, the record contains service treatment records, post service treatment records, and VA examination reports. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Earlier Effective Date for Diabetes The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran was awarded service connection for diabetes in a March 2010 rating decision, with an effective date of April 7, 2009 assigned based on the date of receipt of the Veteran's request to reopen the previously denied claim. The Veteran asserts the effective date of service connection for diabetes should be the date he was diagnosed with diabetes in 2006. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2)(i). The effective date for an award of benefits based upon a claim to reopen a previously denied claim for service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2). A "claim" includes 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). A formal claim is a specific claim in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Also, any communication or action indicating the intent to apply for a benefit under the laws administered by the VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155; 38 C.F.R. § 3.1(p). On February 15, 2006, the Veteran filed an informal claim for service connection for diabetes, followed by a formal claim received on April 21, 2006. In January 2007, the RO issued a rating decision denying service connection for diabetes, primarily because a VA examiner found the Veteran did not meet the diagnostic criteria for diabetes, despite being diagnosed with the condition by his primary care provider in October 2006. The Veteran was notified of the decision by a letter issued in March 2007. Although the Veteran did not file a timely notice of disagreement with that decision, the Board notes that in September 2007, additional VA treatment records were received showing continued diagnosis of diabetes. No subsequent decision on the diabetes claim was rendered until the March 2010 decision currently on appeal. Pursuant to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Because new medical evidence showing a diagnosis of diabetes was received within one year of the January 2007 rating decision, that decision did not become final and remained pending. 38 C.F.R. §§ 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the date of claim for consideration of this appeal is the informal claim filed February 15, 2006. Turning to the medical evidence, VA treatment records dating contemporaneous to the Veteran's claim reflect impaired glucose tolerance, but the problem list did not show a diagnosis of diabetes in 2005 and early 2006. An Agent Orange Registry examination on February 11, 2006 determined that there were no Agent Orange presumptive conditions found. The first documentation showing a diagnosis of diabetes mellitus in the VA treatment records was on March 10, 2006 at which time a resident physician provided a diagnosis of diabetes, and the supervising physician concurred with the findings. The diagnosis was thereafter continued in the treatment records, noted as being controlled by diet until the Veteran was placed on diabetes medication in October 2006. The Veteran underwent a VA examination in December 2006, at which time the examiner, a nurse practitioner, after examining the Veteran and reviewing the treatment records and lab work, concluded the Veteran did not actually meet the diagnostic criteria for diabetes mellitus, despite the diagnosis by the primary care physician noted in the VA treatment records. Upon review of the record, the Board finds both the opinion of the VA examiner and the opinion of the Veteran's treating physician are competent and probative evidence. Both medical professionals considered relevant testing when coming to their respective conclusions. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of balance. In this matter, there is competent and probative evidence in favor of and against the claim. After weighing all of the evidence, the Board is of the opinion that a state of relative equipoise has been reached in this case. Accordingly, after resolving doubt in favor of the Veteran, the Board finds that an effective date of March 10, 2006, the date entitlement arose, is warranted. Such date was the first date in VA treatment records showing a diagnosis of diabetes. An effective date based on his informal claim of February 2006 is not warranted, as the medical evidence from 2005 and January and February 2006 do not reflect that the Veteran was diagnosed with diabetes at that time. In sum, although the Veteran's original claim for diabetes was filed in February 2006, the medical evidence did not show a diagnosis of diabetes until March 10, 2006. Accordingly, March 10, 2006 is the earliest date assignable for the award of service connection for diabetes. 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). ORDER Entitlement to an effective date of March 10, 2006, for the award of service connection for diabetes is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND A March 2015 rating decision denied service connection for colon cancer. The Veteran filed a timely notice of disagreement on the appropriate form in April 2015. It does not appear that such notice of disagreement has been acknowledged by the RO, and no statement of the case has been issued. Accordingly, the Board is required to remand this issue to the RO for the issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, this issue is REMANDED for the following: The RO should undertake all actions required by 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs