Citation Nr: 18142689 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 13-28 612A DATE: October 17, 2018 ORDER Entitlement to an earlier effective date prior to February 21, 2013, for the grant of service connection for peripheral neuropathy of the bilateral upper extremities, is denied. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, is remanded. Entitlement to an initial disability rating in excess of 20 percent for service-connected diabetes mellitus is remanded. Entitlement to an initial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with depression is remanded. (The issue of entitlement to attorney fees will be issued simultaneously under a separate cover). FINDING OF FACT A claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities was not received by VA prior to February 21, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than February 21, 2013, for the award of service connection for peripheral neuropathy of the bilateral upper extremities, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active duty service in the United States Army from January 1966 to January 1969. He has service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from ¬¬¬¬¬¬rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018 the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing was prepared and added to the record. Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist as it pertains to the earlier effective date claim. 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). Entitlement to an earlier effective date prior to February 21, 2013 for the grant of service connection for peripheral neuropathy of the bilateral upper extremities The Veteran is seeking an effective date earlier than February 21, 2013, for the grant of service connection for peripheral neuropathy of the bilateral upper extremities. He contends that he began experiencing symptoms of peripheral neuropathy in the upper extremities as early as 2012, which is when he submitted his claim for service connection for peripheral neuropathy of the feet. Specifically, the Veteran testified at the Board hearing that he was having pain prior to February 2013 but that he was not taking medication for his symptoms. He testified that he was having trouble walking and that his gait was wobbly, and that he had a sensation of pins and needles as well as cramping bilaterally. He reported having trouble gripping objects and that this may have begun prior to February 2013, but that he did not know that these were neuropathy symptoms. Given that he had symptoms of upper extremity neuropathy prior to February 2013, he contends that his effective date should be adjusted to reflect this. The Board notes that the Veteran’s prior attorney indicated in correspondence received February 21, 2013, that the Veteran had “early onset of peripheral neuropathy in the upper extremities bi-lateral (sic)”. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Generally, the effective date of an evaluation and award of compensation based on an original claim, is 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. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). The record on appeal shows that, on February 21, 2013, the RO received the Veteran’s claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. The February 21, 2013, correspondence was a notice of disagreement to the September 2012 rating decision denying entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. In August 2012, the Board notes that the Veteran submitted a claim for peripheral neuropathy of the feet; there was no indication that he was making an assertion that he had peripheral neuropathy in other extremities, nor has he contended such. As is discussed in greater detail in the corresponding decision under separate cover, the date of February 21, 2013, was the first mention of peripheral neuropathy of the upper extremities. Overall, the record on appeal contains no indication otherwise that the Veteran filed an earlier claim for upper extremity neuropathy, and he has not contended otherwise. In a February 2014 rating decision, the RO granted entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, effective February 21, 2013, the date of receipt of the Veteran’s claims. The Veteran has appealed the effective date assigned by the RO. While the Veteran testified that he had peripheral neuropathy symptoms in the upper extremities prior to February 21, 2013, neither he nor his attorney has submitted any argument that the Veteran made a claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities prior to February 2013. The Board notes that, in the September 2012 VA examination on the claim of entitlement to service connection for the bilateral lower extremities, the VA examiner observed that the Veteran had no upper extremity radiculopathy and had no weakness in the upper and lower extremities. Regardless of when the Veteran’s symptomatology began, there is nothing to suggest that the Veteran made a claim for service connection for peripheral neuropathy of the upper extremities prior to February 2013. As set forth above, the RO has assigned an effective date of February 21, 2013, for the award of service connection for peripheral neuropathy of the bilateral upper extremities, corresponding to the date of receipt of the Veteran’s claims. The Veteran has pointed to no earlier claim, formal or informal, and a review of the record reveals no communication which could be construed as a claim of service connection for these disabilities prior to February 21, 2013. See 38 C.F.R. §§ 3.151, 3.155. Again, the law clearly provides that the effective date of an award of compensation based on an original claim shall not be earlier than the date of receipt of that claim. In this case, the Veteran’s claim of service connection for peripheral neuropathy of the bilateral upper extremities was received by VA on February 21, 2013, the effective date currently assigned. For the reasons discussed above, there is no legal basis for an effective date earlier than February 21, 2013, for the award of service connection peripheral neuropathy of the bilateral upper extremities. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND Regrettably, the remaining issues on appeal must be remanded for additional development. It is noteworthy that the Veteran’s attorney submitted VA treatment notes to the record from May 2014 to December 2017, but it is unclear whether these submissions represent the entirety of the Veteran’s VA treatment during the period on appeal. Therefore, the Agency of Original Jurisdiction (AOJ) should determine if any additional VA treatment records must be associated with the claims file, especially any after December 2017. If after the record is complete the AOJ determines additional VA examinations are necessary, these should be scheduled. Additionally, appellants are entitled to initial review by the AOJ of evidence added to the file by the Department of Veterans Affairs (VA), and waiver of such review may not be presumed. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1304. Here, additional evidence has been added to the file by VA since the Statements of the Case were issued on the claims of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, and entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD with depression in July 2015, and since the last Supplemental Statement of the Cause (SSOC) was issued on the claim of entitlement to an initial disability rating in excess of 20 percent for service-connected diabetes mellitus in July 2014. Notably, ongoing VA treatment records describing the progression of the Veteran’s service-connected PTSD and diabetes mellitus, as well as VA examination on the PTSD claim and a VA opinion on the erectile dysfunction claim. Upon review, however, it is clear that the matter has not been readjudicated by the AOJ in a SSOC since that time. Therefore, the appeal must be remanded so that a SSOC may be issued that considers all evidence of record. 38 C.F.R. § 20.1304(c). The matters are REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file, to include records dated from August 2012 to the present. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. (Continued on the next page)   2. If after the record is complete the AOJ determines additional VA examinations are necessary, these should be scheduled. G. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel