Citation Nr: 18142305 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-29 411 DATE: October 15, 2018 ORDER Entitlement to an effective date of September 6, 1993, for the grant of service connection for a back injury is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II claimed as secondary to service-connected chronic fatigue syndrome (CFS), posttraumatic stress disorder (PTSD), and gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT The day following the Veteran’s date of separation from active service, September 6, 1993, is the appropriate effective date for the Veteran’s grant of service connection for a back injury. CONCLUSION OF LAW The criteria are met for an earlier effective date of September 6, 1993, but no earlier, for the award of service connection for a back injury. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(c), 3.160(c), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Navy from September 1989 to September 1993. 1. Entitlement to an earlier effective date prior to September 6, 1993, for the grant of service connection for a back injury Generally, the effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that on March 24, 2015, VA amended its regulations 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 filed on or after March 24, 2015. As the claim in this case was filed 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. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under 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. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran alleges that the effective date September 6, 1993, one day following the Veteran’s date of separation from active duty military service is warranted for his back injury. The Board agrees. To this point, the Board notes that the Veteran filed his original claim for service connection on November 22, 1993, and in the June 1994 rating decision the agency of original jurisdiction (AOJ) deferred issuing a decision on the Veteran’s back injury claim stating that a VA orthopedic examination report was missing from the Veteran’s claims file. Thereafter, evidence added to the record included a February 1995 VA medical record recorded a diagnosis of chronic lumbar myofascitis. In the October 1995 rating decision, they denied the claim for not being well-grounded and specified that a February 7, 1994 VA examination had been associated with the claims folder – the AOJ noted that the examination report had already been associated with the claims folder at the time of the June 1994 rating decision. By letter dated October 24, 1995, the Veteran was notified of this decision and his appellate rights. In November 1995, the Veteran submitted additional evidence with a statement alleging that the evidence should establish that his claim was in fact well-grounded. This evidence included a copy of the previously submitted February 1995 VA medical record diagnosing chronic lumbar myofascitis, additional VA records diagnosing degenerative disc disease in 1994 and a 1994 private medical report noting the Veteran’s history of intermittent severe low back pains since service with an x-ray showing an abnormality of LV5. The December 1995 rating decision denied the Veteran’s claim again for not being well grounded. By letter dated December 11, 1995, the Veteran was notified of this decision and his appellate rights. In March 1996, the Veteran submitted additional VA treatment records which included the actual x-ray results from an examination in 1994 which diagnosed degenerative disc disease of the lumbar spine. The Veteran disputed the prior determinations of his claim being denied as well grounded arguing that the medical records established chronicity of low back disability since service. At that time, he submitted a new VA clinic record reflecting treatment for low back strain. A June 1996 VA examination report diagnosed lumbar paravertebral myositis. In an addendum, a VA examiner opined that the Veteran’s currently diagnosed lumbar paravertebral myositis was not causally related to the inservice treatment for low back pain. A July 1996 AOJ rating decision denied service connection for lumbar paravertebral myositis. By letter dated July 12, 1996, the Veteran was notified of this decision and his appellate rights. The Veteran promptly filed a notice of disagreement (NOD), and was furnished with a statement of the case (SOC) on April 1, 1997. The Veteran filed a substantive appeal, which was received by VA on April 15, 1997. At this time, the Veteran had perfected an appeal to the Board. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1996). In May 2002, the Veteran’s representative listed the issue of service connection for lumbar paravertebral myositis in a Statement of Representative in Appeals Case. However, in subsequent representative arguments and the subsequent Board decisions following this substantive appeal do not address the Veteran’s issue of entitlement to service connection for a back injury. It appears the AOJ failed to further adjudicate the claim. The Veteran filed an additional claim for entitlement to service connection for a back injury in February 2017, which was granted in the May 25, 2017 rating decision and assigned an effective date of February 17, 2017, the date VA received the most recent claim. Here, the Board finds that the Veteran perfected an appeal on the issue of entitlement to service connection for low back disability via the substantive appeal received by VA on April 15, 1997. This appeal was never resolved and remained pending up to the date of the AOJ grant of benefits in 2017. The Board also finds that the original date of claim extends to November 22, 1993. Within one year of the June 1994, October 1995, and December 1995 rating decisions, the Veteran filed new and material evidence requiring a readjudication of the claims. See 38 C.F.R. § 3.156(b). The Veteran ultimately appealed the June 1996 decision which, as discussed above, remained pending until the AOJ awarded service connection for lumbar myositis. With regard to the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56. A March 2017 VA medical opinion establishes that the Veteran’s current lumbar condition was first manifested in service. As such, as the Veteran’s original appeal for his back injury which was filed within one year of the Veteran’s date of separation from service, September 5, 1993, and was never finally adjudicated despite the Veteran submitting a substantive appeal within the prescribed timed parameters. Thus, the appropriate effective date for his claim for a back injury, is one day following his separation from service date, September 6, 1993. There is no legal authority to assign an earlier effective date than that. See 38 C.F.R. § 3.400(b)(2)(i). As such, entitlement to an effective date of September 6, 1993, for the award of service connection for a back injury is granted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II claimed as secondary to service-connected chronic fatigue syndrome (CFS), posttraumatic stress disorder (PTSD), and gastroesophageal reflux disease (GERD) is remanded. The Veteran contends that his diabetes mellitus, type II is proximately due to or aggravated by his service-connected disabilities, particularly his CFS, PTSD, and GERD. The Veteran underwent a previous VA examination where the examiner provided an opinion as to the etiology in connection with his CFS disability, however there is no opinion of record addressing the entirety of the Veteran’s contentions. Thus, the Board finds that a remand for an additional medical opinion is warranted. Once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary for another medical opinion. The examiner should provide adequate rationale for any opinion rendered. The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding VA and private treatment records. 2. Return the Veteran’s claims file for an addendum to the March 2017 examiner’s opinion. If the previous VA examiner is unavailable, the AOJ may assign the case to any qualified individual. The examiner is specifically asked to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus is proximately due to, or the result of his service-connected disabilities particularly CFS, PTSD, and GERD. If not proximately due to or the result of his service-connected disabilities, the examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that his diabetes mellitus is aggravated beyond the natural progress of the disability by his service-connected disabilities. In the instant matter, aggravation means any increase in severity beyond the natural progression of the claimed condition that is proximately due to or the result of the Veteran’s service-connected disability, including stress, symptoms and medication. 3. Upon completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel