Citation Nr: 1803974 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-12 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than December 16, 2011 for the grant of service connection for diabetes mellitus, type II based on herbicide exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a February 2017 Travel Board hearing. A transcript of that proceeding is associated with the claims file. FINDINGS OF FACT 1. The Veteran filed an initial claim of entitlement to service connection for diabetes mellitus, type II on December 16, 2011; in April 2012, the claim was granted with an effective date of December 16, 2011. 2. Prior to receipt of the claim on December 16, 2011, there were no communications from the Veteran or his representative indicating an intent to file a claim of entitlement to service connection for diabetes mellitus, type II. CONCLUSION OF LAW The criteria for an effective date earlier than December 16, 2011, for the grant of service connection for diabetes mellitus, type II have not been met. 38 U.S.C. §§ 5103(a), 5103A, 5107, 5110 (West 2012); 38 C.F.R. § 3.157 (2014); 38 C.F.R. §§ 3.102, 3.114, 3.155, 3.159, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Earlier Effective Date The Veteran seeks an effective date earlier than December 16, 2011 for the grant of service connection for diabetes mellitus, type II based on herbicide exposure. Specifically, he testified during his Board hearing that an unidentified "liaison" at a VA outpatient clinic assisted him with completing claim paperwork around 2009. He also testified that he assumed the claim had been filed at some point before December 2011. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Pertinent regulations for consideration were provided in the February 2014 statement of the case (SOC) and will not be repeated here in full. The effective date of an award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. VA must look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. See 38 U.S.C. § 5102, 38 C.F.R. §§ 3.1(p), 3.155(a). All such possible claims should be generously construed. Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013 (regarding pro se applicants). However, an informal claim must identify the benefit sought and evidence an intent to apply for the benefit. See 38 C.F.R. §§ 3.1(p), 3.155(a). After a full review of the record, the Board finds that an earlier effective date is not warranted. There are no communications of record from either the Veteran or an authorized representative from before December 16, 2011 that the Board could construe as either a formal or informal service connection claim for diabetes mellitus, type II. The only documents of record dated (though not received) prior to the December 2011 service connection claim are VA and private treatment records. Such treatment records include pre-December 2011 diagnoses of and treatment for diabetes mellitus. See, e.g., February 2003 VA primary care note (referencing history of diabetes mellitus and diabetes prescription medication). However, the law does not support considering any of these VA or private treatment records as informal or formal claims for benefits. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim for an earlier effective date was received by VA prior to that date, the former regulations apply, as provided below. A report of VA examination of hospitalization could serve as the date of claim "only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination," and only after the formal claim for benefits was disallowed. 38 C.F.R. § 3.157(b)(1). However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). Indeed, even medical records containing some documentation or discussion of entitlement to benefits have been held not to constitute an informal claim. See King v. Shinseki, 23 Vet. App. 464, 469 (2010) (holding that VA treatment records noting that a veteran "is trying" or "wanted to file" a service connection claim were not sufficient to constitute an informal claim under section 3.155), aff'd 430 Fed. Appx. 890 (unpublished) (Fed. Cir. July 21, 2011). Here, the Veteran's VA clinic records prior to 2011 do show diagnosis of and treatment for diabetes. However, these records cannot constitute a formal or informal claim under 38 C.F.R. § 3.157 (b)(1). As for any private treatment records pre-dating the 2011 claim that showed diagnosis of or treatment for diabetes, those could not serve as an earlier claim under 38 C.F.R. § 3.157. Medical records from private facilities are considered received on the date submitted to VA. 38 C.F.R. § 3.157 (b)(2). In summary, the Board finds that the VA and private treatment records dated before December 2011 regarding diabetes treatment and diagnoses do not constitute informal claims for benefits that would warrant an earlier effective date. Furthermore, the Board recognizes the Veteran's Board hearing testimony that an unidentified "liaison" at a VA outpatient clinic assisted him with completing paperwork relating to a service connection claim for diabetes mellitus, type II around 2009. To the extent that the Veteran's testimony suggested that he or an authorized representative may have filed such a claim around 2009, and to the extent that he contends VA failed to acknowledge or recognize the 2009 claim, the Board rejects those contentions for the following reasons. First, the Veteran's hearing testimony does not support a finding that he or an authorized representative actually filed either a formal or informal service connection claim for diabetes mellitus, type II before December 16, 2011. Specifically, the undersigned Veterans Law Judge and the Veteran had the following exchange (Hearing Tr. at 4-5) (emphasis added): Q. Did you submit a claim any earlier than that [December 2011]? A. Well I just, no, I, I was down in, uh, Fort Myers and I had, uh, you know, made arrangements to, to do it...you know, years ago...had to be 2009 I guess, right around then and, uh, I don't know if there's anything in the, uh, records that would show that but, uh, I'd, uh, forget who I - Q. Do you remember filling out paperwork at that point in time? A. I think so, yeah, it was a liaison or something I had dealt with [at a VA medical facility in Fort Myers, Florida].... .... Q. Okay so you had gone in, you'd talked with this liaison and they had - A. Yeah. Q. -- helped you fill out some paperwork? A. Right. Q. But you're not sure if it ever got filed? A. Uh, I, uh, I assumed it did, you know - Q. But you never heard anything back - A. No. Q. -- no letters in the mail - A. No, no, they - Q. -- that said we've got your claim, nothing like that? A. No, I never did. In summary, at one point the Veteran testified that he did not in fact submit a claim earlier than December 2011. Alternatively, he suggested that he "assumed" the claim had been filed by an unidentified "liaison," or that he "made arrangements" to do so. This testimony is too vague and indefinite to support a finding that either he or an authorized representative indeed filed a formal or informal service connection claim for diabetes mellitus before the December 2011 claim, the only such claim of record. Accordingly, the Board affords this testimony little probative value. Second, the Veteran's recognition that he never received any acknowledgement letter from VA regarding the alleged submission of either a formal or informal service connection claim prior to December 2011 bolsters the conclusion that he did not in fact file such an earlier claim. The presumption of regularity provides that government officials, including VA officials, are presumed to have properly discharged their official duties, unless rebutted by clear evidence to the contrary. Baldwin v. West, 13 Vet. App. 1, 6 (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). In this case, the Veteran has not submitted any evidence to rebut the presumption of regularity as to the suggestion that VA officials may have received a pre-December 2011 service connection claim for diabetes mellitus around 2009, but failed to send him a notice or other correspondence acknowledging such a claim. Therefore, the Board finds that there is no record of any such acknowledgment letter from VA to the Veteran because neither he nor an authorized representative in fact filed a formal or informal service connection claim for diabetes mellitus, type II before December 16, 2011. Nor is the Veteran entitled to an earlier effective date under 38 C.F.R. § 3.114. Under 38 C.F.R. § 3.114, when for a claim for compensation becomes grantable based on a change in law, the effective date of the changed law may be assigned as the effective date for compensation. It is required that the claimant was eligible for compensation as of the date of the change in the law and continuously thereafter. Diabetes mellitus, type II was added to the list of diseases presumed to be related to herbicide exposure effective May 8, 2001. The evidence does not suggest, and the Veteran does not contend, that he had diabetes on or before May 8, 2001. To the contrary, medical records reflect that he was diagnosed with diabetes in 2003 at the earliest. See, e.g., February 2003 VA primary care note. As the evidence does not support a finding that this condition had its onset on or before May 8, 2001, he was not eligible for compensation for diabetes at that time. Therefore, assignment of an earlier effective date under 38 C.F.R. § 3.114 is not warranted. Finally, the Board finds that the Veteran is not entitled to an earlier effective date under regulations applicable to Nehmer class members (and neither he nor his representative contends this). VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). However, the Nehmer provisions do not provide relief for the Veteran as there was no claim pending (or denied) for service connection for diabetes at any time prior to the 2011 claim. To some extent, the Veteran is contending that because his diabetes was diagnosed several years prior to his 2011 claim, service connection should be granted from an earlier date. This amounts to an argument couched in equity. The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis. While it is unfortunate that his claim was not filed at an earlier date, the Board has no choice but to deny his appeal. The RO properly granted the earliest effective date available, the date the service connection claim was received, on December 16, 2011. Therefore, the appeal is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duties to Notify and Assist Finally, neither the Veteran nor his representative has 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). Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. ORDER Entitlement to an effective date earlier than December 16, 2011 for the grant of service connection for diabetes mellitus, type II based on herbicide exposure is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs