Citation Nr: 18143197 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-22 728 DATE: October 18, 2018 ORDER An effective date earlier than August 30, 2010, for the grant of service connection for diabetes mellitus, is denied. An effective date earlier than August 30, 2010, for the grant of service connection for mild concentric left ventricular hypertrophy, is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a rating in excess of 30 percent for mild concentric left ventricular hypertrophy is remanded. Whether there was clear and unmistakable error in a November 2006 rating decision which denied entitlement to a total disability based on individual unemployability (TDIU). Entitlement to a TDIU is remanded. Entitlement to a special monthly compensation (SMC) on the need for aid and attendance or being housebound is remanded. FINDINGS OF FACT 1. The Veteran served in a unit stationed in the Korean Demilitarized Zone (DMZ) between April 1, 1968, to August 31, 1971; exposure to herbicide agents is conceded. The Veteran did not have service in the Republic of Vietnam. 2. Diabetes mellitus is a covered herbicide disease. 3. A formal claim for service connection for diabetes mellitus was received on August 30, 2010; there is no record of an earlier claim that can reasonably be construed as a claim for service connection for diabetes mellitus. 4. Service connection for mild concentric left ventricular hypertrophy condition was granted as secondary to service-connected hypertension. 5. A formal claim for service connection for hypertension was received on August 30, 2010; there is no record of an earlier claim that can reasonably be construed as a claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 30, 2010, for the grant of service connection for diabetes mellitus, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 2. The criteria for an effective date earlier than August 30, 2010, for the grant of service connection for mild concentric left ventricular hypertrophy, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.310, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to October 1970 and from August 1975 to July 1990, with service in the Republic of Korea. These matters are before the Board of Veterans’ Appeals (Board) on appeal from the February 2012, March 2012, and April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran waived initial RO consideration of additional evidence added to the claims file. See 38 C.F.R. § 20.1304(c). REFERRED The issue of service connection for anemia was raised in an October 2012 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Effective Date The effective date of an award based on an original claim for compensation benefits 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. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). Generally, for claims awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114 (a). These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997). A “claim” or “application” is defined by VA regulation 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) (prior to 2015). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits…” and must identify the benefit sought. 38 C.F.R. § 3.155(a) (prior to 2015). VA has amended the regulations to require submissions on standardized claim forms. However, this change does not apply to the Veteran’s appeal. 1. Entitlement to an effective earlier than August 30, 2010, for the grant of service connection for diabetes mellitus. The Veteran was granted service connection for diabetes mellitus on a presumptive basis, as he served with a unit operating within the vicinity of the DMZ between April 1, 1968 and August 31, 1971. The March 2012 rating decision assigned an effective date of August 30, 2010, the date his claim for service connection was received at VA. The Veteran contends that he is entitled to an earlier effective date for his diabetes mellitus, based on the class action lawsuit of Nehmer v. United States Department of Veterans Affairs. See October 2012 Correspondence. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, 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). A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide agent disease. While diabetes mellitus is a covered herbicide agent disease, the Veteran did not have service in Vietnam; only in Korea. Therefore, he does not qualify as a Nehmer class member and as such, the provisions of 38 C.F.R. § 3.816 are not applicable. For the reasons stated below, an effective date earlier than August 30, 2010, is not permissible by law. The Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11, 12 (Feb. 6, 1991), gave the Secretary the authority to add to the list of diseases subject to service connection on a presumptive basis. That list is set forth at 38 C.F.R. § 3.309 (e). Diabetes mellitus was added to the list of diseases presumed to be related to herbicide agent exposure, effective May 8, 2001. Like the statute 38 U.S.C. § 5110 (g), the regulation 38 C.F.R. § 3.114, which implemented the statute, states that the effective date of an award made pursuant to a VA liberalizing issue “shall not be earlier than the effective date of the issue itself,” thus implying that the effective date of the grant of the award could be the same date as the date of the liberalizing issue, in this case May 8, 2001. However, again like the statute, the subsequent language of the regulation clarifies when this can occur. The only way that an effective date of an award can be the same date as the effective date of the liberalizing VA administrative issue is if the claim is reviewed within a year of the effective date of the issue, either at VA or the claimant’s initiative. 38 C.F.R. § 3.114 (a)(1). If the claim is reviewed more than one year after the effective date of the issue, either at VA or the claimant’s initiative, then “benefits may be authorized for a period of 1 year prior to the date of receipt of such request.” 38 C.F.R. § 3.114 (a)(2),(3). It is required that the claimant was eligible for compensation as of the date of the change in the law and continuously thereafter. The Veteran’s initial claim for compensation benefits for diabetes mellitus was received by VA on August 30, 2010. An earlier claim for compensation was received in July 1990, but did not include a claim of service connection for diabetes mellitus. A February 2012 VA examination shows the Veteran was first diagnosed with diabetes in 2002. VA treatment records indicate that the Veteran was newly diagnosed with diabetes mellitus in March 2003, but these records were not received by VA until March 2012. As noted, service connection was granted by the RO in a March 2012 rating decision. The evidence does not suggest, and the Veteran does not contend, that he had diabetes mellitus as of May 8, 2001. Medical records reflect that he was diagnosed with diabetes mellitus no earlier than 2002. Moreover, VA amended adjudication regulations, extending a presumption of herbicide agent exposure to certain Veterans who served in Korea, were not effective until February 24, 2011- after the Veteran filed his claim. 38 C.F.R. § 3.307(a)(6)(iv); 76 Fed. Reg. 4245 (Jan. 25, 2011). Thus, the Veteran’s exposure to herbicide agents in service was not established prior to 2011. Further, the Veteran’s claim was received on August 30, 2010 and, as demonstrated above, the preponderance of the evidence reflects that neither a formal nor informal claim for benefits was filed prior to that date. Therefore, 38 C.F.R. §§ 3.114 does not provide the basis for an earlier effective date. Turning to 38 C.F.R. § 3.400, the Veteran has not asserted, and the claims file does not reflect, that he submitted a formal or informal claim for service connection for diabetes mellitus prior to the claim VA received on August 30, 2010. The date of the disability arose in March 2003. The later of the two dates is August 30, 2010. The effective date is assigned based on the date that the application or claim upon which service connection was eventually awarded was received by VA. 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382-83 (1999). Accordingly, assignment of an earlier effective date under 38 C.F.R. § 3.400 is also not warranted. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Here, based on the evidence of record and the applicable VA regulations, the earliest date allowable for the award of service connection for diabetes is the current effective date of August 30, 2010, the date on which the Veteran’s claim for service connection was initially received. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 2. Entitlement to an effective earlier than August 30, 2010, for the grant of service connection for mild concentric left ventricular hypertrophy. The Veteran was granted service connection for mild concentric left ventricular hypertrophy, as secondary to his service-connected hypertension condition. The April 2012 rating decision assigned an effective date of August 30, 2010, the date his claim for service connection for hypertension was received at VA. The Veteran contends that he is entitled to an earlier effective date for his mild concentric left ventricular hypertrophy, based on the Nehmer class action lawsuit, as noted above. See September 2012 Correspondence. However, as explained above, he does not qualify as a Nehmer class member and as such, the provisions of 38 C.F.R. § 3.816 are not applicable. After a review of the record, an effective date earlier than August 30, 2010, is not permissible by law, for the reasons stated below. As noted earlier, an initial claim for compensation benefits was received in July 1990, but did not include a claim of service connection for mild concentric left ventricular hypertrophy, or for any heart conditions. A formal claim for service connection for hypertension was received by VA on August 30, 2010. The Veteran initially filed a formal claim for service connection for ischemic heart disease, as due to exposure to herbicide agents, which was received by VA on March 15, 2011. At the April 2012 VA examination for heart conditions, the examiner provided a diagnosis. The Veteran was not diagnosed with ischemic heart disease. VA and private treatment records do not provide a diagnosis for ischemic heart disease. In an April 2012 rating decision, service connection for mild concentric left ventricular hypertrophy was granted by the RO, as secondary to his service-connected hypertension condition. The assigned effective date was based on the date VA received a claim for hypertension. Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents, effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). This amendment is considered a liberalizing VA issue regarding ischemic heart disease and therefore, Section 3.114 may apply. However, in this case, the Veteran does not have a diagnosis of ischemic heart disease. Mild concentric left ventricular hypertrophy is not included in VA’s definition of ischemic heart disease. 38 C.F.R. § 3.309(e)(indicating ischemic heart disease includes acute, subacute and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). Further, the effective date for this liberalizing law would not afford the Veteran a date earlier than the one currently assigned. Turning to Section 3.400, the effective date of the award will be the later of the date VA received the claim, or the date the disability arose. In this case, service connection for this claim was granted secondary to service-connected hypertension. Thus, service connection at an earlier date than the date of service connection for hypertension is not permissible. The date of service connection for hypertension dictates the earliest date at which service connection secondary to a service-connected disability may arise. 38 C.F.R. §§ 3.400, 3.310. There is no other basis for an earlier effective date for claimed benefits raised by the Veteran or the record. Therefore, the proper effective date is August 30, 2010, the date of the claim for service-connected hypertension. 38 C.F.R. § 3.400; Lalonde, 12 Vet. App. at 382-83. Accordingly, assignment of an earlier effective date under 38 C.F.R. § 3.400 is also not warranted. As there are no provisions permitting an earlier date, the Board finds that an effective date earlier than August 30, 2010, is not warranted. To that extent, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While delay is regrettable, further development is necessary. 1. Entitlement to service connection for sleep apnea; entitlement to a rating in excess of 20 percent for diabetes mellitus; and entitlement to a rating in excess of 30 percent for mild concentric left ventricular hypertrophy, are remanded. Information in the file indicates that the Veteran is receiving disability benefits from the Social Security Administration (SSA). It is unclear whether these are benefits were awarded due to the claimed disabilities. On remand, the RO should contact the Veteran and inquire as to the nature of his SSA disability benefit award and seek to obtain the records, if appropriate. 38 C.F.R. § 3.159. A July 2017 VA treatment record showed that the Veteran was treated at the Phoebe Hospital with regard to his diabetes mellitus condition. A remand is required to allow VA to obtain authorization and request these records. Additionally, updated treatment records should be obtained from the Carl Vinson and Dublin VA medical centers (VAMCs) upon remand. 2. Entitlement to a TDIU and SMC are remanded. The Veteran seeks entitlement to TDIU and SMC. The aforementioned development of the increased rating and service connections claims may affect these claims; thus, consideration of these issues is deferred, pending on the above development. Regarding TDIU, the Veteran contends that he is unable to work due to his service-connected conditions. He is in receipt of a total disability rating for his combined service-connected disabilities effective August 30, 2010. Thus, the claim for TDIU after this date survives only for the purpose of SMC consideration at the housebound rate. The Board notes, however, that in July 2015, the RO adjudicated the issue of whether there was clear and unmistakable error (CUE) in a November 2006 rating decision that denied entitlement to TDIU. The Veteran submitted a notice of disagreement to the July 2015 rating decision in October 2015. A statement of the case (SOC) has not been issued. A remand is required for the AOJ to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Veteran also seeks SMC on the need for aid and attendance or being housebound. In the rating decision and SOC on appeal, the RO appears to have only considered entitlement to SMC based on housebound status, and not the need for aid and attendance. On remand, they will have an opportunity to do so. The matters are REMANDED for the following action: 1. Issue an SOC on the issue of whether there was CUE in a November 2006 rating decision that denied entitlement to TDIU. 2. Obtain the Veteran’s VA treatment records from the Carl Vinson and Dublin VAMCs from February 2018 to the present. 3. Contact the Veteran to determine the nature of his SSA benefits. If these are based on disability, and are relevant to the claimed disabilities on appeal, take appropriate steps to obtain the records. Document all requests for information as well as all responses in the claims file. 4. Ask the Veteran to complete a VA Form 21-4142 for any non-VA health provider, including for Phoebe Hospital. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 5. Schedule the Veteran with an appropriate VA examination to ascertain the extent of impairment attributable to his service-connected disabilities for purposes of determining whether he meets the requirements for SMC based on the need for regular aid and attendance due to these disorders. The record should be made available to the examiner for review. The examiner should offer an opinion as to whether the Veteran is permanently bedridden or so helpless as to be in need of regular aid and attendance by another person to perform personal functions required in everyday living due to his service-connected chronic headache syndrome, PTSD, degenerative disc disease of the lumbar spine, mild concentric left ventricular hypertrophy, bilateral peripheral vascular disease of the lower extremities, diabetes mellitus, neuropathy of all four extremities associated with diabetes mellitus, bilateral wrist strain, bilateral ankle strain, tinnitus, bilateral hearing loss, hypertension, and pseudofolliculitis barbae. (Continued on the next page)   A fully-explained rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Tang, Associate Counsel