Citation Nr: 1759990 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 09-37 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date prior to September 13, 2007, for the award of service connection for diabetes mellitus, type II. 2. Entitlement to an effective date prior to April 24, 2001, for the award of service connection for ischemic heart disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. These matters came to the Board of Veterans' Appeals (Board) from July 2008 and March 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2008 rating decision, the RO granted service connection for diabetes mellitus, assigning a 20 percent disability rating, effective September 13, 2007. In the March 2012 rating decision, the RO granted service connection for ischemic heart disease, assigning a 10 percent disability rating, effective April 24, 2001, and a 100 percent disability rating, effective July 30, 2011. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2012; the transcript is of record. In his testimony before the Board, the Veteran expressed disagreement with the effective dates assigned for service connection and for the 100-percent rating for ischemic heart disease. The Board found that the hearing transcript was tantamount to a timely notice of disagreement with the March 2012 rating decision which assigned the effective dates for ischemic heart disease. These matters were remanded in May 2013. In a September 2013 rating decision, the RO assigned a 30 percent disability rating to ischemic heart disease, effective November 25, 2009, and assigned a 60 percent disability rating, effective February 28, 2011. The 100 percent rating from July 30, 2011 remains in effect. A statement of the case was issued in September 2013 with regard to whether an earlier effective date was warranted for the 100 percent rating assigned to ischemic heart disease. The Veteran did not file a substantive appeal; thus, the Board does not have jurisdiction of this issue. These matters were remanded again in April 2016. The issue of entitlement to an earlier effective date for the grant of service connection for ischemic heart disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On September 13, 2007, a claim of service connection for diabetes mellitus, type II, was received. 2. By rating decision in July 2008, service connection was granted for diabetes mellitus, type II, effective September 13, 2007. 3. A November 6, 2006, VA treatment record reflects an implied claim of compensation for diabetes mellitus, type II. 4. Prior to November 6, 2006, there was no prior unadjudicated formal or informal claim of service connection for diabetes mellitus, type II. CONCLUSION OF LAW The criteria for an effective date of November 6, 2006, but no earlier, for the grant of service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claims file contains the Veteran's VA treatment records. The Board has otherwise perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the claim. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Criteria & Analysis The effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Prior to determining the merits of the Veteran's appeal, it is beneficial to discuss a series of court decisions that the RO relied upon in establishing the effective date of September 13, 2007, for the grant of service connection. As the result of a class action lawsuit brought by veterans of the Vietnam war and their survivors, in a May 1989 decision the United States District Court for the Northern District of California (District Court) invalidated the regulation then in effect for adjudicating claims based on Agent Orange exposure, 38 C.F.R. § 3.311a(d) (1989). The District Court also voided all benefit denials that had been made under that section of the regulation. See Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I). Following the 1989 decision of the District Court, the parties entered into a stipulation agreement governing VA's re-adjudication of all claims that had been denied under the invalidated regulation, which stipulation agreement was made an order of the court. Paragraph 3 of the stipulation and order provided that "[a]s soon as a final rule is issued service connecting, based on dioxin exposure, any ... disease which may be service connected in the future pursuant to the Agent Orange Act of 1991, the VA shall promptly thereafter readjudicate all claims for any such disease which were voided by the Court's order of May 3, 1989, as well as adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order." According to Paragraph 5, the effective date for disability compensation based on the re-adjudication of a claim that was voided by the District Court shall be the date the voided claim was originally filed. The District Court subsequently interpreted the stipulation and order, in light of the 1989 decision, as requiring VA to re-adjudicate all claims voided in the 1989 decision if the disease was subsequently presumptively service connected, even if the original claim was not expressly based on Agent Orange exposure. The District Court also determined that, if the re-adjudication resulted in a grant of service connection, the effective date would be the date of the original claim. See Nehmer v. United States Veterans' Administration, 32 F.Supp.2d 1175 (N.D. Cal. 1999) (Nehmer II). In a later decision the United States Court of Appeals for the 9th Circuit (9th Circuit) interpreted Paragraph 3 of the stipulation and order as applying to all claims voided by the District Court in the May 1989 order, as well as all similar claims filed subsequent to the May 1989 order. In addition, if the re-adjudication of a "similar claim" resulted in an award of benefits, the effective date for the grant of service connection is the date of the original claim. The disease at issue in the 9th Circuit decision was prostate cancer, which under the regulation in effect in 1994, was not subject to presumptive service connection. The regulation (38 C.F.R. § 3.309(e)) was revised in 1996 to include prostate cancer as a presumptive disease. See Nehmer v. United States Veterans Administration, 284 F.3d 1158, 1161 (9th Cir. 2002). In May 2001, the regulations were revised to include diabetes mellitus in the list of diseases to which the presumption of service connection applies for veterans who were exposed to Agent Orange while in service. See Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166 (May 8, 2001) (codified at 38 C.F.R. § 3.309(e)). The Board notes here that effective date rules for awards under the Nehmer Court Orders have been promulgated at 38 C.F.R. § 3.816. The provisions of 38 C.F.R. § 3.816 provide that for purposes of this section -- (1) A Nehmer class member means: (i) A Vietnam veteran who has a covered herbicide disease; or (ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide diseases (2) A covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. Those diseases include Type 2 Diabetes. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3)of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. (3) If the class member's claim referred to in paragraph (c)(1)or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with Sec. Sec. 3.114 and 3.400. The Veteran has appealed from the assignment of September 13, 2007, as the effective date for the grant of service connection for diabetes. He does not assert that he filed a claim prior to September 13, 2007. Rather, the Veteran claims that treatment records reflect a diagnosis of diabetes mellitus prior to this date. The Veteran's essential argument is that VA had knowledge of his diabetes mellitus prior to September 13, 2007. However, the mere presence of medical evidence of a disability does not show an intent on the Veteran's part to seek service connection and therefore does not constitute a claim; rather, the Veteran must assert a claim either expressly or impliedly. VA is not required to conjure up issues not raised by the claimant. Brannon v. West, 12 Vet. App. 32 (1998). Therefore, the Board declines to view any references to diabetes in medical records as a claim for VA compensation based on diabetes. Turning to a review of the claims file, the evidence of record reflects that the Veteran has filed multiple claims for compensation prior to September 13, 2007; however, he did not claim compensation for diabetes mellitus. The Veteran asserted exposure to herbicides in a December 1993 submission, claiming a liver disability and spots on his back and groin due to such exposure, but did not claim service connection for diabetes mellitus. 12/20/1993 VA 21-4138 Statement in Support of Claim. Likewise, in September 1996, the Veteran again asserted exposure to herbicides but did not claim service connection for diabetes mellitus due to such exposure. 09/10/1996 VA 21-4138 Statement in Support of Claim. The Board acknowledges, however, that a November 6, 2006 VA outpatient addendum reflects the following: DM: all risks and complications explained/pt will stop by the NATIONAL registry for AGENT orange to apply for the benefits. 01/10/2008 Medical Treatment Record-Government Facility at 66. VA was in constructive possession of this record at the time of receipt of the September 2007 claim per Bell v. Derwinski, 2 Vet. App. 611 (1992). Despite the fact that a written claim is not of record until September 13, 2007, the Board finds that this constitutes an implied claim for compensation for diabetes mellitus. This is accepted as an implied claim especially in light of his Vietnam service and his prior claims of compensation due to herbicide exposure. Thus, the Board finds that an effective date of November 6, 2006 is warranted. However, prior to this date, the Veteran did not express any intent, implied or otherwise, to include diabetes in any claim for VA compensation. As noted earlier, the fact that medical records showed that he suffered from diabetes is not sufficient in itself to communicate an intent to claim service connection for diabetes. Although at that time a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon, 12 Vet. App. at 34; see also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995). While diabetes may have been diagnosed prior to submission of the September 2007 claim and prior to the November 2006 implied claim, the Nehmer court decisions did not alter the statutory requirement that the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). In the absence of a claim, or intent to file a claim, for diabetes mellitus prior to November 6, 2006, an effective date prior to that date is not warranted. ORDER Entitlement to an effective date earlier of November 6, 2006, but no earlier, for the grant of service connection for diabetes mellitus, type II, is granted. REMAND The issue of entitlement to an effective date prior to April 24, 2001 for the award of service connection for ischemic heart disease was remanded in May 2013 and April 2016 for issuance of a statement of the case per Manlincon v. West, 12 Vet. App. 238 (1999). To date, a statement of the case has not been issued. Stegall v. West, 11 Vet. App. 268 (1998). Thus, remand is necessary for compliance with the May 2013 and April 2016 Remand directives. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran with regard to the issue of entitlement to an effective date earlier than April 24, 2001, for the award of service connection for ischemic heart disease. This issue should only be certified to the Board if a timely substantive appeal is received. The Veteran and his representative have the right to submit additional evidence and argument on the matter or 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs