Citation Nr: 1805766 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-28 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for diabetes mellitus. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for neuropathy of the bilateral upper extremities. 4. Entitlement to service connection for neuropathy of the bilateral lower extremities. 5. Entitlement to service connection for posttraumatic stress disorder (PTSD), also claimed as depression, anxiety and sleep disturbances. 6. Entitlement to service connection for an eye disability manifested by pressure and burning. 7. Entitlement to an effective date earlier than August 11, 2010, for the grant of service connection for chronic fatigue syndrome. 8. Entitlement to an effective date earlier than August 11, 2010, for the grant of service connection for irritable bowel syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty in the Army from April 1977 to April 1980, from March 1981 to February 1983, and from November 1990 to January 1992, to include service in Southwest Asia. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) Phoenix, Arizona in July 2011. The issues of entitlement to service connection for diabetes mellitus, neuropathy of the bilateral upper extremities, neuropathy of the bilateral lower extremities and eye disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required. FINDINGS OF FACT 1. Unappealed January 2000 and September 2001 rating decisions denied service connection for diabetes mellitus. 2. Evidence received since the September 2001 rating decision includes evidence that is neither cumulative to, nor redundant of, the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for diabetes mellitus. 3. A February 2013 rating decision granted service connection for PTSD. 4. In January 2000 and September 2001 rating decisions, the RO denied service connection for irritable bowel syndrome; the Veteran did not appeal these determinations or submit new and material evidence within one year of these determinations. 5. The RO granted service connection for irritable bowel syndrome in a June 2011 rating decision, and assigned an effective date of August 11, 2010 for the award, the date of receipt of the claim to reopen. 6. No evidence prior to August 11, 2010, may be construed as a formal or informal claim of entitlement to service connection for chronic fatigue syndrome. CONCLUSIONS OF LAW 1. The September 2001 rating decision, which (in pertinent part) denied service connection for residuals of diabetes mellitus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.160, 20.200, 20.302, 20.1103 (2017). 2. New and material evidence has been received, and the claim seeking entitlement to service connection for diabetes mellitus is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The Board lacks jurisdiction over the claim of service connection for PTSD because that claim has been granted and rendered moot. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2017). 4. The criteria for an effective date earlier than August 11, 2010, for the grant of service connection for irritable bowel syndrome have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400 (2017). 5. The criteria for an effective date earlier than August 11, 2010, for the grant of service connection for chronic fatigue syndrome have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met in this case. See 38 U.S.C. §§ 5103, 5103A. The required notice was provided to the Veteran via letters in September and November 2010. The Veteran has not identified any defect in this notice or claimed any prejudice as a result. VA has also fulfilled its duty to assist the Veteran in developing the claims decided herein. The Veteran's service treatment records (STRs) and post-service VA and private medical records have been obtained and associated with the claims file. Neither the Veteran nor her representative has identified any other outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Thus, the Board finds that VA has satisfied its duties to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claims. Claim to Reopen New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In a January 2000 rating decision, the RO denied the Veteran's claim for service connection for diabetes mellitus, finding the claim to be not well-grounded and noting that there was no evidence of treatment for diabetes mellitus in service or within one year of service separation. The Veteran was notified of this decision, but he did not appeal it or submit new and material evidence within the one-year appeal period. In September 2001, after the enactment of the VCAA, the RO again denied the Veteran's claim seeking service connection for diabetes mellitus on essentially the same basis. The Veteran was notified of this decision, but she did not appeal it or submit new and material evidence within the one-year appeal period. Therefore, these decisions are final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. The evidence of record at the time of the September 2001 rating decision includes the Veteran's STRs, and VA treatment records and examination reports dated through March 1999. The STRs are silent for complaints or findings related to diabetes mellitus. The VA treatment records show a diagnosis of diabetes mellitus in November 1998, six years after service separation. The evidence received since the September 2001 rating decision includes a February 1992 private laboratory report that was received in October 2010. The report notes abnormally high blood glucose levels and a diagnosis of hyperglycemia in February 1992, one month after discharge. The report also instructs that if the Veteran "is not known to be diabetic, follow ADA recommendations for diagnosis of diabetes." This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim - the possible presence of a disability within one year of service discharge - and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for diabetes is reopened. PTSD Historically, the Veteran submitted a claim seeking service connection for various disabilities, including sleep disturbances and depression, due to her Gulf War service, in August 2010. The June 2011 rating decision denied service connection for PTSD, also claimed as depression, anxiety and sleep disturbances. The Veteran submitted a notice of disagreement in August 2011. Thereafter, a February 2013 rating decision granted service connection for PTSD, effective August 11, 2010. The rating decision notes a November 2010 VA examiner's opinion that the Veteran has PTSD, with symptoms of depression, anxiety and sleep disturbances, due to your fear of hostile military forces in the Gulf War. The effective date assigned for the award of service connection for PTSD is the date of the Veteran's claim. As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). See also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). With regard to psychiatric disorders, it is possible that one claim for service connection for a psychiatric disorder could at some point be considered separate claims for service connection for different psychiatric disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability"). That is not the case here, however, as the RO granted service connection for PTSD. Moreover, there is no indication that there are symptoms of another psychiatric disorder that are distinct from the one for which service connection has been granted. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). For reasons unclear to the Board, following the February 2013 award of service connection for PTSD, the RO issued an August 2013 statement of the case for the denial of service connection for PTSD. This was clearly done in error. A subsequent rating decision issued in March 2014 reflects the award of service connection for PTSD, effective August 11, 2010. The Board finds that because the AOJ granted service connection for all of the Veteran's mental health symptoms, the claim as it concerns PTSD, also claimed as depression, anxiety and sleep disturbances, is satisfied in full and that issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Here, as a result of the AOJ's action in the February 2013 rating decision, there no longer remains a case or controversy with respect to this claim. Therefore, the Board lacks jurisdiction over this issue because it has been granted and rendered moot on appeal. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Therefore, dismissal of this claim is warranted. Earlier Effective Date Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In cases of reopened claims for service connection, the effective date is also the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Moreover, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). For the period on appeal, a claim is defined as 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(p). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file after the last final disallowance of the claim that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, VA is required to forward an application form to the claimant for execution. If VA receives the application form within one year from the date it was sent to the claimant, VA will consider it filed as of the date it received the informal claim. 38 C.F.R. § 3.155. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 18, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, and for reasons more fully explained below, the Board finds that August 11, 2010, is the proper date for the grant of the award of service connection for both chronic fatigue syndrome and irritable bowel syndrome. A. Irritable Bowel Syndrome Historically, the Veteran submitted a claim for service connection for irritable bowel syndrome in November 1998. In a January 2000 rating decision, the RO (in pertinent part) denied the claim. The Veteran was notified of this decision January 2000, but she did not appeal it or submit any evidence within the one-year appeal period. Therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In a September 2001 rating decision, the RO (in pertinent part) again denied the irritable bowel syndrome claim. The Veteran was notified of this decision in September 2001, but she did not appeal it or submit any evidence within the one-year appeal period. Therefore, the decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995). In this case, the Veteran and her representative have not specifically alleged CUE in the January 2000 or September 2001 rating decision. Based on the foregoing, the Board concludes that these rating decisions were final, and there is no outstanding CUE motion. After the September 2001 rating decision and notification letter, the Veteran first submitted a petition to reopen her claim of entitlement to service connection for irritable bowel syndrome in a statement received on August 11, 2010. The Board has carefully reviewed the record in order to determine if there was an earlier pending petition to reopen the claim for service connection for irritable bowel syndrome, but has identified no such document, nor has the Veteran pointed to any earlier communication evidencing an intent to reopen the claim. See Servello v. Derwinski, 3 Vet. App. 196 (1992) (holding that the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Therefore, the Board concludes that a formal or informal petition to reopen the claim was not received prior to the petition received on August 11, 2010. In a June 2011 rating decision, the RO granted service connection for irritable bowel syndrome, effective from August 11, 2010, the date of the receipt of the petition to reopen the claim. With regard to the date that irritable bowel syndrome arose, there is some medical evidence to suggest that the disability began during service. See December 2010 VA General Medical examination report. The date of claim (August 11, 2010) is clearly later in time than the date the disability arose. Thus, the currently assigned effective date of August 11, 2010, for the grant of service connection for irritable bowel syndrome is the later of the two dates and is the proper effective date. As the preponderance of the evidence is against the Veteran's claim for an effective date earlier than August 11, 2019, for the grant of service connection for irritable bowel syndrome, the claim must be denied. 38 U.S.C. § 5107(b). B. Chronic Fatigue Syndrome The Veteran stated that her chronic fatigue syndrome first manifested during her Gulf War military service; therefore, her chronic fatigue syndrome should have been granted effective 1998, the date of her initial VA compensation claim. See August 2011 Notice of Disagreement and October 2013 VA Form 9. The record shows that the Veteran submitted her original claim for service connection in November 1998. She made no claim for chronic fatigue syndrome at that time. A claim of service connection for chronic fatigue syndrome was not received until August 11, 2010. A June 2011 rating decision granted service connection for chronic fatigue syndrome, effective August 11, 2010. Of record at the time of the rating decision was a December 2010 VA General Medical examination report, which includes an opinion that the Veteran has chronic fatigue syndrome, a chronic multisymptom illness related to her Gulf War service. As such, the December opinion supports the proposition that entitlement to service connection for chronic fatigue syndrome arose during service. As this will necessarily be the earlier date, an effective date cannot be assigned until a later date on which the Veteran filed a claim for the disability. See 38 C.F.R. § 3.400(b)(2); Tatum, supra. Accordingly, the material issue in dispute in this appeal concerns the date of claim element. In reviewing the evidence to determine whether any communication submitted by the Veteran indicated an attempt to apply for service connection for chronic fatigue syndrome, no document submitted prior to August 11, 2010, indicates an intent to pursue a claim of entitlement to service connection for this disability. In this regard, the Board emphasizes that a claim must identify the benefit sought and indicate an intent to seek benefits; the mere reference in medical treatment records to that disability is not a claim. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (medical treatment for a disability, without an intent expressed by a claimant to seek benefits based on that disability does not constitute an informal compensation claim). As noted, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. While the Board remains sympathetic to the Veteran and does not question the sincerity of her belief that she is entitled to earlier effective dates for her chronic fatigue syndrome, the Board cannot grant the claim and instead is constrained to follow the applicable provisions of the law. ORDER New and material evidence having been received, the claim for service connection for diabetes mellitus is reopened, and to this extent only, the appeal is granted. The appeal as to the claim of service connection for PTSD is moot, and the claim is dismissed for lack of jurisdiction. An effective date earlier than August 11, 2010, for the grant of service connection irritable bowel syndrome is denied. An effective date earlier than August 11, 2010, for the grant of service connection chronic fatigue syndrome is denied. REMAND Service Connection for Diabetes Mellitus In February 1999, a VA examiner stated that the Veteran's diabetes was first discovered in November 1998. Subsequent to this, the Veteran submitted a February 1992 private laboratory report that notes findings of abnormally high blood glucose levels and a diagnosis of hyperglycemia. The report, dated one month after service separation, also instructs that if the Veteran "is not known to be diabetic, follow ADA recommendations for diagnosis of diabetes." Based on this evidence, the Board finds that a new opinion should be obtained via remand. The Board also notes that the lack of a diagnosis alone does not preclude a finding that it is at least as likely as not that the Veteran's diabetes had its onset during his period of active service or was manifest to a compensable degree within one year of discharge from service. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Neuropathy of the Upper and Lower Extremities, Eye Disability Throughout her appeal, the Veteran has primarily relied on the theory of entitlement to service connection based on her Gulf War service. Nevertheless, after reviewing the Veteran's claims file, the Board finds that the Veteran may alternatively establish service connection by showing that his disabilities are related to a service-connected disability. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (the Board is required to consider all theories of entitlement, raised either by the claimant or by the evidence, as part of the non-adversarial adjudication process). Here, this potentially includes diabetes mellitus, which is being remanded for additional development. Therefore, remand is required for the neuropathy and eye claims as they are inextricably intertwined with the diabetes mellitus claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The diabetes mellitus claim must be readjudicated prior to the readjudication of the neuropathy and eye claims. Accordingly, the case is REMANDED for the following actions: (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. Contact the Veteran and obtain the names and addresses of all medical care providers, VA and non-VA, who might have records, not already associated with the claims file, pertaining to post-service treatment or evaluation of diabetes mellitus, neuropathy, and/or an eye disability. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims file. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. Thereafter, request an opinion from an appropriate VA examiner as to the etiology of the Veteran's diabetes mellitus. An in-person examination is not required unless deemed necessary by the examiner. The examiner should be provided and review the electronic claims file, including a copy of this Remand. The examiner should address the following: a. Whether it is as least as likely as not (50 percent or greater probability) that diabetes mellitus had its onset during, or is otherwise related to, the Veteran's active military service. b. If the answer to (a) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran's diabetes became manifest to a degree of 10 percent or more within one year of January 2, 1992? For purposes of this opinion, manifest to a degree of 10 percent of more means that diabetes mellitus is manageable by a restricted diet and/or requires insulin, an oral hypoglycemic agent, and/or regulation of activities. c. If the examiner provides a negative response to (b), the examiner should explain why the elevated blood glucose reading in February 1992 does not indicate that it is as least as likely as not (50 percent or greater probability) that diabetes mellitus manifested during the Veteran's period of active service or manifest to a degree of 10 percent or more within one year of January 2, 1992. The fact that there were an insufficient number of blood glucose readings to satisfy the criteria for a diagnosis of diabetes in service is not determinative. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After any additional development deemed warranted, readjudicate the Veteran's claims of entitlement to service connection for diabetes mellitus, neuropathy of the upper extremities, neuropathy of the lower extremities, and eye disability. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and her representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. See 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 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). ______________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs