Citation Nr: 18149205 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-35 650A DATE: November 9, 2018 ORDER Entitlement to an effective date of December 11, 2012, but no earlier, for the grant of service connection for type II diabetes mellitus is granted. Entitlement to an effective date of December 11, 2012, but no earlier, for the grant of service connection for right lower extremity peripheral neuropathy is granted. Entitlement to an effective date of December 11, 2012, but no earlier, for the grant of service connection for left lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. On December 11, 2013, the Veteran filed his first and only claim for service connection for type II diabetes mellitus on a VA Form 21-526EZ. 2. The Veteran was first diagnosed with type II diabetes mellitus in 2010. 3. The Veteran had symptoms of bilateral lower extremity neuropathy one year prior to December 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 11, 2012, but no earlier, for the grant of service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.861 (2017). 2. The criteria for an effective date of December 11, 2012, but no earlier, for the grant of service connection for right lower extremity neuropathy have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.861 (2017). 3. The criteria for an effective date of December 11, 2012, but no earlier, for the grant of service connection for left lower extremity neuropathy have been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.861 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to October 1968. The Veteran died in May 2016. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Effective Date The appellant contends that the Veteran is entitled to an effective date in 2010, because this is when he was first diagnosed with type II diabetes. Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). 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. During the pendency of this appeal, VA amended it 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, and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). Prior to this change, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. The Board finds that based on the statues and regulations above, the correct effective date for the Veteran’s claims in December 11, 2012. In this case, the Veteran filed a VA Form 21-526EZ Fully Developed Claim (FDC) for service connection for type II diabetes mellitus and bilateral upper extremity neuropathy, on December 11, 2013, within the timeframe specified above. The RO awarded service connection for diabetes and bilateral upper extremity neuropathy in March 2014, effective December 11, 2013. The Veteran timely appealed the assigned effective date in November 2014. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision). In addition, the record does not indicate the Veteran filed either a formal or informal claim for entitlement to service connection for diabetes or bilateral upper extremity neuropathy prior to December 2013. For a Veteran’s FDC claim to be eligible for a one-year retroactive effective date, there must be evidence demonstrating that the disability existed for one year prior to submission of the claim. See 38 U.S.C. § 5110. In this case, the March 2014 VA examiner stated that the Veteran was diagnosed with diabetes in 2010. As such, the records demonstrate the Veteran had diabetes one year prior to the submission of the claim. Regarding diabetic neuropathy, the March 2014 VA examiner stated that it was a recognized complication of diabetes, although he did not provide a date of onset for the neuropathy. The examiner stated the Veteran had reported numbness in the legs in 2010, 2012, and 2013, but he also noted that the Veteran had independent back problems. The Veteran’s private treating records indicate in November 2013 he had decreased sensation in his feet and he was diagnosed with neurological manifestations of diabetes. As such, considering the Veteran’s neuropathy is secondary to his diabetes, which was diagnosed in 2010, and resolving reasonable doubt in favor or the Veteran, the Board finds that the Veteran had symptoms of diabetic neuropathy one year prior to the submission of the claim. Accordingly, the Veteran is eligible for a one-year retroactive effective date, and the correct effective date for the Veteran’s service-connected diabetes and bilateral upper extremity neuropathy is December 11, 2012. However, the Veteran is not entitled to an effective date earlier than December 11, 2012. The Board has considered the special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, 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 Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov’t of the United States., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. United States Veterans Admin., 494 F.3d. 846 (2007) (Nehmer IV). Specifically, certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(2). If the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease, including type II diabetes mellitus. The liberalizing law that added type II diabetes mellitus as a disease presumptively due to in-service exposure to herbicides became effective May 8, 2001. The Veteran is a Nehmer class member. However, he was not denied compensation for diabetes between September 25, 1985, and May 3, 1989. He also did not have a claim for compensation for diabetes pending on May 3, 1989, and he did not submit a claim for compensation for diabetes between May 3, 1989, and May 8, 2001. As the circumstances of his diabetes compensation claim do not meet the requirements of 38 C.F.R. § 3.816(c)(1) or (2), the effective date for the grant of service connection for his diabetes must be assigned according to 38 C.F.R. §§ 3.114 and 3.400. Under 38 C.F.R. § 3.114, when for a claim for compensation becomes grantable based on a change in law, the effective date of the changed law may be assigned as the effective date for compensation. It is required that the claimant was eligible for compensation as of the date of the change in the law and continuously thereafter. Diabetes was added to the list of diseases presumed to be related to herbicide exposure effective May 8, 2001. See 69 Fed. Reg. 31,882 (June 8, 2004). The evidence does not suggest, and the Veteran does not contend, that he had diabetes as of May 8, 2001. Medical records reflect that he was diagnosed with diabetes in 2010. As his diabetes did not have onset by May 8, 2001, he was not eligible for compensation for diabetes at that time. Therefore, assignment of an earlier effective date under 38 C.F.R. § 3.114 is not warranted. The Board acknowledges the appellant’s contention that the Veteran should be awarded an effective date earlier than December 2013 because he was first diagnosed with diabetes in 2010. However, VA cannot pay benefits unless a claim is filed. In this case, the Veteran did not file his claim for service connection until December 2013. The Board acknowledged that the March 2014 VA examiner found the Veteran was diagnosed with type II diabetes in 2010. However, VA cannot award benefits back to 2010 because no claim was filed until December 2013. Although the Veteran may have demonstrated diabetes prior to 2013, VA cannot assign an effective date of an award of service connection based on the earliest medical evidence showing a causal connection to service; rather, it must assign the date that it received the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999). As noted above, the Veteran is entitled to a one-year retroactive effective date based on the application of Public Law 112-154, Section 506. However, an effective date prior to December 11, 2012, is not warranted. (CONTINUED ON NEXT PAGE)   Based on the laws and regulations, the Veteran is not entitled to an effective date of December 11, 2012, but no earlier, for the grant of service connection for type II diabetes and bilateral peripheral neuropathy. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel