Citation Nr: 1625597	
Decision Date: 06/27/16    Archive Date: 07/11/16

DOCKET NO.  15-37 702	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an effective date prior to December 23, 2014, for the grant of service connection for amyotrophic lateral sclerosis (ALS).

2.  Entitlement to an effective date prior to December 23, 2014, for the grant of service connection for right upper extremity neurological deficit including weakness associated with amyotrophic lateral sclerosis (ALS).

3.  Entitlement to an effective date prior to December 23, 2014, for the grant of service connection for left upper extremity neurological deficit including weakness associated with amyotrophic lateral sclerosis (ALS).

4.  Entitlement to an effective date prior to December 23, 2014, for the grant of service connection for neurological bowel impairment associated with amyotrophic lateral sclerosis (ALS).

5.  Entitlement to an effective date prior to December 23, 2014, for the grant of service connection for erectile dysfunction associated with amyotrophic lateral sclerosis (ALS).
6.  Entitlement to an effective date prior to December 23, 2014, for the grant of special monthly compensation (SMC) based on loss of use of a creative organ.

7.  Entitlement to an effective date prior to December 23, 2014, for the grant of SMC based on the need for regular aid and attendance.


REPRESENTATION

Veteran represented by:	James J. Perciavalle


ATTORNEY FOR THE BOARD

C. Samuelson, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Navy from April 1967 to October 1968.
	
This matter comes before the Board of Veterans' Appeals (Board) from April 2015 and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to an effective date prior to December 23, 2014 for the grant of service connection for ALS is decided below.  The remaining issues on appeal are addressed in the REMAND portion of the decision and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  VA received the Veteran's original claim for service connection for ALS (claimed as chronic inflammatory demyelinating polyneuropathy (CIPD)) on December 23, 2014.  

2.  The competent medical evidence of record indicates that ALS manifested prior to September 23, 2008.


CONCLUSION OF LAW

The criteria for the assignment of an effective date of December 23, 2013 for the grant of service connection for ALS are met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114(a), 3.318, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In an April 2016 memorandum in lieu of VA Form 646, the Veteran's representative contends that the Veteran is entitled to an earlier effective date of December 23, 2013, as he showed early signs of ALS as far back as 2007.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Board agrees that an effective date of December 23, 2013 is warranted.

Generally, except as otherwise provided, the effective date of an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  That is, the effective date of an award "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. § 5110(a). 

However, effective September 23, 2008, VA issued a regulation establishing presumptive service connection for ALS.  See 38 C.F.R. § 3.318; see also 73 Fed. Reg. 54691 (Sept. 23, 2008).  This regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the veteran had active, continuous service of 90 days or more.  38 C.F.R. § 3.318.  

Establishment of presumptive service connection for ALS is a liberalizing act, as the United States Court of Appeals for Veterans Claims (Court) has held that amendments creating presumptive service connection for diseases constitute liberalizing laws.  Spencer v. Brown, 4 Vet. App. 283, 287 (1993) (recognizing as a liberalizing law "a provision of law or regulation creates a new basis for entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit").  

Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.  38 C.F.R. § 3.114(a).  If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request.  38 C.F.R. § 3.114(a)(3).

In the instant case, the Veteran's original claim of service connection for ALS (claimed as CIPD) was received by the RO on December 23, 2014.  He does not allege, and the evidence does not otherwise reflect, an earlier claim for ALS.  An April 2015 rating decision granted service connection for ALS, effective December 23, 2014.  However, as the Veteran's claim was reviewed more than one year after the effective date of the liberalizing regulation providing presumptive service connection for ALS, and service connection was granted as the result of such regulation, he is entitled to an earlier effective date of December 23, 2013 if he met the criteria for that benefit as of the date of the liberalizing regulation. 

The medical evidence shows that the Veteran developed symptoms of ALS prior to the date of that regulation (September 23, 2008).  In August 2014 private treatment records, the Veteran reported poor balance since 2007.  In a January 2016 letter, the Veteran's private treating provider, Dr. Bidula, indicated that the Veteran had been under his care dating back to 2008 for problems related to footdrop, and clinically that was likely the initial presentation of what now has evolved into a clear-cut diagnosis of ALS.  Affording him the benefit of the doubt as to the presence of ALJ in September 2008, an effective date of December 23, 2013, and no earlier, is warranted.  38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a)(3).


ORDER

An effective date of December 23, 2013, and no earlier, for the award of service connection for ALS is granted, subject to the laws and regulations governing payment of monetary benefits.


REMAND

As noted above, the Veteran's private treating physician, Dr. Bidula, indicated the Veteran had been under his care since 2008 for ALS-related issues.  However, the claims file only contains records from Dr. Bidula dated from May 2014 to April 2015.  Accordingly, on remand, complete records from Dr. Bidula dating back to 2008, as well as any outstanding VA treatment records, must be requested.  


Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  With any necessary assistance from the Veteran, obtain all outstanding treatment records from Dr. Bidula dated since 2008.  Any negative response should be in writing and associated with the claims file.

2.  Obtain all outstanding VA treatment records.

3.  Then, after taking any additional development deemed necessary, readjudicate the issues on appeal.  

The Veteran has the right to submit additional evidence and argument on the matters 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).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs