Citation Nr: 18148145 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-30 402 DATE: November 6, 2018 ORDER Entitlement to an earlier effective date for diabetes mellitus, prior to October 24, 2011, is denied. FINDING OF FACT On October 24, 2011, the Veteran filed a claim to reopen the appeal for service connection for diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than October 24, 2011, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to July 2009. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction has since been transferred to the RO in Waco, Texas. In May 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The issue of whether there was clear and unmistakable error (CUE) in the August 2009 rating decision based on the original denial of service connection for diabetes mellitus, has been raised by the Veteran’s June 2012 Statement in Support of Claim, as well as his May 2018 hearing testimony. The Board notes that, because CUE claims are unique claims that are collateral attacks on prior final rating decisions, and because the law and regulations governing such issues are different from those involved in addressing a claim for an earlier effective date, the CUE claim referred herein to the Agency of Original Jurisdiction (AOJ) is not intertwined with the earlier effective date issue decided below. This is so even though a finding of CUE may result in the grant of an earlier effective date. Here, the AOJ has not yet adjudicated the CUE claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 1. Entitlement to an earlier effective date for diabetes mellitus, prior to October 24, 2011, is denied. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant 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. VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran is seeking an effective date prior to October 24, 2011, for the award of service connection for diabetes mellitus. In the present case, the Veteran separated from active duty in July 2009, and sought service connection for diabetes mellitus upon discharge. See April 2009 VA Form 21-526 Application for Compensation or Pension. As noted above, the assignment of an effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran’s claim for service connection for diabetes was initially denied in an August 2009 rating decision. However, the Veteran did not file a notice of disagreement within one year of the rating decision and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The Veteran requested to reopen a claim of entitlement to service connection for diabetes mellitus in a Statement in Support of Claim received on October 24, 2011. The effective date based on submission of new and material evidence after a final disallowance is the date of the receipt of the claim. 38 U.S.C. § 5110 (a) (201238 C.F.R. §§ 3.400 (2017); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002). At the May 2018 hearing, the Veteran testified that he was diagnosed with diabetes during service. See May 2018 Board Hearing Testimony p. 5. For this reason, he contended that the correct effective date for his service-connected diabetes mellitus was the day following his separation from service. Id. at 6. Following its review of the record, the Board finds that October 24, 2011, is the correct effective date for the award of service connection for diabetes mellitus, because that is the date of receipt of his claim to reopen. The Veteran separated from active service in July 2009. His original claim for service connection for diabetes was denied in an August 2009 rating decision, which became final. There is no indication that a claim, formal or informal, seeking to reopen the claim for service connection for diabetes was received prior to October 2011. Although the Board is sympathetic to the Veteran’s claim, as the previous denial was final, and no new and material evidence was submitted between the previous final denial and his October 24, 2011 claim, an earlier effective date cannot be established. (Continued on the next page)   In reaching this decision, the Board has considered the Veteran’s written statements; as well as testimony. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel