Citation Nr: 1754728 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-04 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date prior to November 5, 2008, for the grant of service connection for diabetes mellitus type II (DM II). 2. Entitlement to an effective date prior to November 5, 2008, for the grant of service connection for peripheral neuropathy, left lower extremity. 3. Entitlement to an effective date prior to November 5, 2008, for the grant of service connection for peripheral neuropathy, right lower extremity. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to February 1972, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Affairs (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction over the case was subsequently transferred to the VA RO in Chicago, Illinois. The Veteran requested a videoconference hearing before a member of the Board and was scheduled for that hearing in August 2017. The Veteran later indicated that he would not be appearing for his hearing and requested that it be canceled. Therefore, there is no bar to proceeding with a final decision at this time. The Board notes that in a December 2013 rating decision, the RO granted an effective date of November 5, 2008, for the issues of entitlement to service connection for DM II and peripheral neuropathy of the bilateral lower extremities. That was only a partial grant of the benefits sought on appeal. However, the Board will limit its consideration accordingly. FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for DM II and bilateral lower extremity peripheral neuropathy was received on April 25, 2008. 2. The Veteran has had DM II and peripheral neuropathy related to active service since at least April 25, 2008, which is the date his original claim was inferred for service connection. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 25, 2008, but not earlier, have been met for the claim of entitlement to service connection for DM II. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for an effective date of April 25, 2008, but not earlier, have been met for the claim of entitlement to service connection for peripheral neuropathy, left lower extremity. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 3. The criteria for an effective date of April 25, 2008, but not earlier, have been met for the claim of entitlement to service connection for peripheral neuropathy, right lower extremity. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). The "date entitlement arose" has been interpreted to mean the date when the claimant met the requirements for the benefits sought. 38 U.S.C. § 5110 (a). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the Veteran's claims were raised prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. Under the old regulations, "claim" is defined broadly to include 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 (2017); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. 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. 38 C.F.R. § 3.155(a) (2017). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran contends that an earlier effective date of at least January 2008 for the award of service connection for DM II, and bilateral peripheral neuropathy of the lower extremities is warranted due to his exposure to herbicides while serving in the Republic of Vietnam. By way of history, the Veteran filed a claim of entitlement to service connection for residuals of a gunshot wound on December 27, 2007. In support of that claim, he submitted medical records which indicated diagnoses for DM II and peripheral neuropathy. VA initially inferred the Veteran's original claim for service connection for DMII and peripheral neuropathy on March 30, 2009, the date that VA received the Veteran's VA Form 21-4142, authorization to release information to VA. VA treatment records submitted by the Veteran indicated that the Veteran was diagnosed with DM II and peripheral neuropathy in January 2008. On April 25, 2008, the Veteran submitted a statement asserting that many of his treating physicians had informed him about the dangers of his exposure to herbicides and that this exposure caused his diabetes and neuropathy, along with a host of other ailments. In November 2008, the Veteran was afforded a VA examination for his DM II and peripheral neuropathy. An April 2009 rating decision, in pertinent part, granted entitlement to service connection for DM II and neuropathy. The Veteran filed a notice of disagreement in June 2009 contesting the assigned effective date of March 30, 2009. In December 2013, VA granted an earlier effective date of November 5, 2008, citing the date that the Veteran was afforded a VA examination. In light of that procedural history, and after resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran submitted his original claim for service connection for DM II and peripheral neuropathy on April 25, 2008. By April 25, 2008, the Veteran's medical records citing diagnoses of DM II and peripheral neuropathy had been associated with the claims file. The Veteran's medical records indicated that diagnoses were received in January 2008, and his statement can be construed as an informal claim of entitlement for service connection for those disabilities. The Board again notes that the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Board also again notes that under 38 C.F.R. § 3.400 (a) (2), if a claim is received within one year of separation, the effective date will be the day after separation or the date entitlement arose. In applying the regulation to the facts of the case, the Veteran did not file a claim within a year of separation from service, and the date of claim is later than the date entitlement arose. Therefore, the appropriate effective date is April 25, 2008. ORDER Entitlement to an effective date of April 25, 2008, but not earlier, for the grant of service connection for DM II is granted. Entitlement to an effective date of April 25, 2008, but not earlier, for the grant of service connection for peripheral neuropathy, left lower extremity, is granted. Entitlement to an effective date of April 25, 2008, but not earlier, for the grant of service connection for peripheral neuropathy, right lower extremity, is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs