Citation Nr: 1800666	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  15-39 524	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an effective date earlier than July 24, 2013, for the grant of service connection for diabetes mellitus type 2.


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Gibson


INTRODUCTION

The Veteran served on active duty from March 1968 to November 1971 and from February 1975 to December 1978.

This appeal to the Board of Veterans' Appeals (Board) is from a March 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In December 2016, the Veteran had a personal hearing before the undersigned VLJ.

In this decision, the Board is granting an effective date of July 24, 2012, for the grant of service connection of diabetes mellitus type 2.


FINDINGS OF FACT

The Veteran was diagnosed with diabetes mellitus type 2 in the 1990s, and has had it continuously since then.  His only claim for service connection for diabetes was received in July 2013.    


CONCLUSION OF LAW

The criteria are met for an effective date of July 24, 2012, for the grant of service connection for diabetes mellitus type 2.  38 U.S.C. § 5101, 5110 (West 2014); 38 C.F.R. § 3.1, 3.114, 3.400, 3.816 (2017).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

In general, the effective date for an award of disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(b)(1) (West 2014); 38 C.F.R. § 3.400 (2017).  

Here, the Veteran's claim was received July 24, 2013, which is the date assigned by the RO as the effective date for service connection for his diabetes mellitus type 2.  The Veteran asserts that he is entitled to an earlier effective date by one year (or one year of retroactive benefits) under 38 C.F.R. § 3.114.

The provisions of 38 C.F.R. § 3.114 allow, under certain circumstances, for the assignment of a retroactive effective date to be assigned when compensation is awarded pursuant to a liberalizing law.  See 38 U.S.C. § 5110(g).  In order to qualify, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement.  38 C.F.R. § 3.114.  For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review.

The Veteran's diabetes mellitus type 2 was granted service connection under 38 C.F.R. § 3.307(a)(6), which provides for service connection of diseases associated with exposure to herbicides during the Vietnam war, which is a liberalizing law.  The list of such diseases associated with exposure is located at 38 C.F.R. § 3.309(e).  The specific provision pertaining to diabetes was effective on May 8, 2001.  

The inquiry, then, is whether the Veteran was diagnosed with diabetes mellitus type 2 prior to May 8, 2001, and has continuously had it since diagnosis.  Here, the Veteran's treating physician authored a note indicating that the Veteran was diagnosed with diabetes in 1997 and had been continuously treating it since that time.  

The Board notes the provisions of 38 C.F.R. § 3.816 provide for even earlier effective dates, but only in cases where the Veteran had filed an earlier claim that was denied.  The Veteran does not allege that he filed any earlier claim, and the record does not so suggest.

Accordingly, as the evidence shows he was diagnosed with diabetes mellitus type 2 prior to May 8, 2001, he has been continuously treated for it since then, and he did not file any other claim for service connection for diabetes, formal or informal, until 2013, the Board finds that he is entitled to the one-year retroactive period permitted under 38 C.F.R. § 3.114.  An effective date of July 24, 2012, is assigned for the grant of service connection for diabetes mellitus type 2.


ORDER

An effective date of July 24, 2012, is granted for the grant of service connection for diabetes mellitus type 2.



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs