Citation Nr: 1751730 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 17-24 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an effective date of service connection earlier than March 1, 2010 for diabetes mellitus, type II (diabetes). 2. Whether it was proper to reduce the evaluation of diabetes from 10 percent to 0 percent effective March 31, 2017. 3. Entitlement to an initial rating higher than 20 percent prior to July 1, 2010, and higher than 10 percent as of July 1, 2010, for diabetes. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran completed an honorable career in the U.S. Air Force, serving on active duty from August 1959 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that awarded service connection for diabetes mellitus, type 2, and assigned a 20 percent rating effective March 1, 2010, and a 10 percent rating effective from July 1, 2010. The issue of the propriety of the reduction in rating of the Veteran's diabetes is encompassed by his appeal of the initial rating assigned this disability. In this regard, an April 2017 rating decision reduced the rating of his diabetes from 10 percent to 0 percent effective March 31, 2017, a level below what was in effect when the Veteran initiated his appeal of the August 2015 rating decision. See O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007). Given the fact that the propriety of the reduction is essentially a rating issue, and the Veteran has already perfected an appeal of the rating assigned his diabetes, the Board finds that the propriety of the reduction is part and parcel of his appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a higher initial rating for diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A claim for diabetes was not received by VA prior to March 1, 2010, and no rating decision exists prior to that date that could reasonably be construed as a denial of this claim. 2. The Veteran was first diagnosed with diabetes in a September 2009 VA treatment record, which notes that his blood sugar level in June 2008 was consistent with diabetes. 3. The addition of diabetes to the list of diseases presumed to be caused by exposure to an herbicide agent constituted a liberalizing law. 4. The March 2017 VA examination report was not sufficient for the purpose of reducing the evaluation of the Veteran's diabetes. CONCLUSIONS OF LAW 1. The criteria for an effective date of service connection of March 1, 2009, but no earlier, for diabetes are satisfied. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816 (2010, 2017); 66 Fed Reg 23 166 (May 8 2001). 2. The reduction from a 10 percent rating to a 0 percent rating, effective March 31, 2017, for diabetes was not proper; the 10 percent rating must be restored. 38 U.S.C. §§ 503, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Effective Date of Service Connection for Diabetes The Veteran appealed the effective date of service connection for diabetes. He has not advanced any arguments in support of an earlier effective date. For the following reasons, the Board finds that the criteria for an effective date of service connection of March 1, 2009, but no earlier, are satisfied. A. Law Except as otherwise provided, the effective date of an evaluation and award of 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 the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. There is an exception to the above effective date provisions when a claim is granted pursuant to a "liberalizing" VA law or administrative issue. See 38 C.F.R. § 3.114. Specifically, and as relevant to this appeal, where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA or by the Secretary's direction, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Id. If a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing VA law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. Id. In order for a claimant to be eligible for a retroactive payment under this section, 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. Id. The retroactive provisions section 3.114 apply both to original and reopened claims, as well as to claims for increase. Id. With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101 (2012); 38 C.F.R. § 3.151 (2017). Effective prior to March 2015, VA regulation provided that 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(a) (2010); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect when the Veteran filed his claim for diabetes, it is applicable to the present case. B. Analysis The Veteran submitted an informal claim for diabetes on March 1, 2010. The Veteran does not state, and the record does not show, that a claim for diabetes was submitted prior to that date. Diabetes mellitus was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309(e) (2017) effective May 8, 2001. See 66 Fed Reg 23 166 (May 8 2001); Desegang v Sec'y of Veterans Affairs, 312 F 3d, 1368, 1378 (Fed Cir 2002) (holding that the effective date of the presumption should be May 8, 2001, not July 9, 2001, pursuant to 38 U.S.C. § 1116(c)(2)). The addition of diabetes to the presumptive list constitutes a liberalizing law for the purposes of the effective date provisions of § 3.114. Based on the fact that service connection for diabetes was granted pursuant to a liberalizing law, an effective up to March 1, 2009, which is one year prior to the date of the Veteran's claim, may be awarded. See 38 C.F.R. § 3.114. Because the Veteran's claim was submitted more than a year after the liberalizing law, the effective date can be no earlier than one year prior to the date of claim. See id. The VA treatment records show that the Veteran was first diagnosed with diabetes in September 2009. However, in that record, the physician who rendered the diagnosis noted that the Veteran's blood glucose level in June 2008 was consistent with a diagnosis of diabetes. Thus, the evidence supports a finding that the Veteran had diabetes as early as June 2008, and thus in March 2009, notwithstanding the fact that it was first officially diagnosed in September 2009. Accordingly, an effective date of March 1, 2009 is warranted. Under 38 C.F.R. § 3.816 (2017), and as required by the U.S. District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991), Nehmer class members may benefit from special effective date rules. To qualify as a Nehmer class member, the claimant must be a Vietnam veteran with a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1). A "covered herbicide disease" means a disease for which VA has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in 38 C.F.R. § 3.309(e). The Veteran does not qualify as a Nehmer class member. The record shows that he did not have service in Vietnam. His herbicide exposure was established based on his service in Thailand. See May 2015 Board Decision. Therefore, the effective date provisions of § 3.816 are not applicable. In the alternative, there is no claim of record, formal or informal, for diabetes prior to March 1, 2010. Moreover, there are no rating decisions prior to March 1, 2010 that can reasonably be construed as denying service connection for diabetes. Thus, the criteria for an earlier effective date based on the provisions applicable to Nehmer class members are not satisfied. See 38 C.F.R. § 3.816. As the Veteran retired from service in January 1982, the effective date cannot be one day after such separation, since a claim for diabetes was not filed within one year of service separation. See 38 C.F.R. § 3.400. In sum, an effective date of service connection for diabetes of March 1, 2009 is granted. An effective date earlier than March 1, 2009 cannot be awarded as a matter of law, for the reasons discussed above. Because the law, and not the facts, is dispositive of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis v. West, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. Propriety of Rating Reduction The evaluation of the Veteran's diabetes was reduced from 10 percent to 0 percent effective March 31, 2017 based on a report of a VA examination conducted that date. Under VA regulation, a 10 percent rating is assigned for diabetes mellitus that is manageable by restricted diet only. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). For the following reasons, the Board finds that the rating reduction was improper. As the Veteran's diabetes had been rated as 10 percent disabling or higher for at least five years at the time of the rating reduction, the provisions of § 3.344(a) and (b) apply. These provisions provide, in pertinent part, that it is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete. 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Id. Rating agencies will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with VA law. Id. Though there may be material improvement in the disability at issue, the rating agency must consider whether the evidence makes it certain that the condition will be maintained under the ordinary conditions of daily life. Id. If doubt remains, the rating agency will continue the rating in effect, and then determine how much time it will allow to elapse, as specified in the regulation, before reexamination will be made. 38 C.F.R. § 3.344(b). In the March 2017 VA examination report, the examiner concluded that the diagnosis of diabetes was essentially invalid. Specifically, the examiner stated that a review of the treatment records did not show evidence that the diagnostic criteria for diabetes were satisfied. The only explanation provided by the examiner was that a September 2009 VA treatment record reflected laboratory test results showing an elevated A1c of 6.1, which was high enough to place the Veteran in pre-diabetes versus diabetes status. However, the examiner did not account for the fact that according to the September 2009 VA treatment record, diabetes was diagnosed because the Veteran's blood glucose levels were consistently higher than 100 mg/dl. Thus, diabetes was apparently diagnosed not based on the A1c levels, but the individual glucose test results. The examiner did not discuss this fact, nor explain how subsequent test results showed material improvement such that a diagnosis of diabetes was no longer warranted. Notably, the VA treatment records themselves continue to reflect this diagnosis. In sum, the March 2017 VA examination report is not sufficient to conclude that the Veteran no longer has diabetes requiring management by restricted diet. Consequently, the rating reduction was improper, and the 10 percent evaluation must be restored effective March 31, 2017. See 38 C.F.R. § 3.344. ORDER An effective date of service connection of March 1, 2009, but no earlier, for diabetes mellitus, type II is granted. The reduction of the evaluation of diabetes from 10 percent to 0 percent effective March 31, 2017 was not proper; the 10 percent rating is restored effective March 31, 2017. REMAND The evaluation of the Veteran's diabetes must be remanded for further development. As discussed above, the March 2017 VA examination report is not adequate for rating purposes, as the examiner did not sufficiently explain why the Veteran does not meet the criteria for diabetes. Moreover, an April 2017 VA treatment record reflects that the Veteran was seen in orthotics for measurement of "diabetic shoes and inserts." The "provisional" diagnosis was diabetes with diabetic neuropathy. As this record suggests that the Veteran's diabetes may have worsened or now results in complications, a new VA examination should be arranged. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Add to the claims file any outstanding VA treatment record dated since April 2017. 2. Arrange for a VA diabetes examination. In the examination report, the examiner must also identify any complications of diabetes. In this regard, the examiner must address the April 2017 "provisional" diagnosis of diabetic neuropathy in the VA treatment records. 3. Then, after completing any other development that may be indicated, readjudicate the evaluation of the Veteran's diabetes. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. All claims 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. §§ 5109B, 7112 (2012). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs