Citation Nr: 18149429 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-06 461 DATE: November 9, 2018 ORDER An earlier effective date than October 1, 2011 for service connection for diabetes mellitus, type II (diabetes) is denied. FINDING OF FACT No informal or formal claim for service connection for diabetes is of record prior to October 2012. The Veteran was not denied service connection for diabetes between September 25, 1985 and May 3, 1989, and no claim for service connection for diabetes was pending before VA on May 3, 1989 or received by VA between May 3, 1989 and May 8, 2001. CONCLUSION OF LAW The criteria are not met for an effective date earlier than October 1, 2011 for diabetes. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816; 66 Fed Reg 23 166 (May 8, 2001). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to September 1967, including service in Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision. The Veteran requests an effective date earlier than October 1, 2011 for service-connected diabetes. Specifically, he asserts that the September 2000 medical record showing diagnosed diabetes should allow VA to assign an earlier effective date. Legal Criteria The assigned effective date for service connection shall be either the day after separation from active service or, the date entitlement arose, if the claim is received within one-year after service separation. Otherwise, the effective date shall be the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). However, retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. If the claim is reviewed based on a request from the claimant or by VA initiative more than one year from the date the change became effective, the effective date for the award of benefits will be one-year prior to the date of the request if the Veteran met all the eligibility requirements. See 38 C.F.R. § 3.114(a)(2). These provisions apply to original and reopened claims, and claims for increase. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); McCay v. Brown, 9 Vet. App. 183 (1996). Also, following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations for effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease. See 38 C.F.R. § 3.816. Certain effective dates apply if a class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. Diabetes was added to the list of diseases eligible for presumptive service connection based on exposure to herbicide agents on May 8, 2001, meaning May 8, 2001 is the effective date of the applicable liberalizing law. See 66 Fed. Reg. 23166 (May 8, 2001) (amending 38 C.F.R. § 3.309(e) to include diabetes); see also 69 Fed. Reg. 31882 (amending the effective date of the amendment that added diabetes to May 8, 2001). Regarding the date of claim, a specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. Prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2010); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a); cf Sellers v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1114 (holding that prior to March 24, 2015, a general statement of intent to seek benefits coupled with a reasonably identifiable in-service medical diagnosis in service treatment records may be sufficient to constitute a claim for benefits). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Factual Background In October 2012, the Veteran filed a formal claim for service connection for diabetes. He also submitted a July 2012 letter from a physician stating the Veteran had been diagnosed with diabetes in 1999. In a July 2013 rating decision, the RO granted service connection for diabetes and assigned an effective date of October 1, 2012. The notification letter informed the Veteran that he may be assigned an earlier effective date if he could provide evidence showing he was diagnosed with diabetes by May 8, 2001. The RO also informed the Veteran that the July 2012 physician letter was not sufficient evidence of a 1999 diabetes diagnosis because the letter was not contemporaneous to the diagnosis and appeared to be based on the Veteran’s report, rather than the physician’s knowledge, of the Veteran’s medical history. In January 2014, the Veteran submitted a September 2000 private treatment record showing diabetes was diagnosed after a blood sugar reading was 214 a week earlier. The RO then assigned an effective date of October 1, 2011, one year prior to the Veteran’s service connection claim. Analysis After a careful review of record, the Board finds that an effective date prior to October 1, 2011 is not warranted for the grant of service connection for diabetes. The record reflects that the Veteran served in Vietnam, and he was granted presumptive service connection for diabetes based on exposure to herbicides during this service. Thus, he is a Nehmer class member. However, the Veteran was not denied compensation for diabetes between September 25, 1985, and May 3, 1989 and did not submit a claim for service connection for diabetes between May 3, 1989, and May 8, 2001. As such, the special effective date rules pursuant to Nehmer and outlined in 38 C.F.R. § 3.816 are not applicable. Therefore, the October 1, 2012 date of claim is the appropriate effective date unless an exception applies. Another possible exception exists under 38 C.F.R. §§ 3.114 regarding liberalizing laws. As noted above, diabetes was added to the list of diseases eligible for presumptive service connection based on exposure to herbicide agents on May 8, 2001. The Veteran filed a claim for service connection for diabetes on October 1, 2012. Applying this exception to this case, the Veteran’s claim was reviewed more than one year after the May 2001 effective date of the liberalizing regulation (the regulation that allowed presumptive service connection for diabetes). The regulation then permits an effective date of one year earlier than the date of claim if all other requirement for service connection are met as of the date of the liberalizing regulation. For that reason, the RO asked the Veteran to submit evidence showing that the Veteran was diagnosed with diabetes by May 8, 2001. After the Veteran submitted this evidence, the RO extended the date of service connection back one year from the Veteran’s date of claim, to October 1, 2011, as permitted by 38 C.F.R. § 3.114(a)(2). There is no evidence of any communication or action indicating an intent to apply for VA benefits before the Veteran’s October 2012 claim. The Veteran also has not reported that he made an informal or formal claim prior to October 2012. Therefore, the Board finds that there is no informal or formal claim for service connection for diabetes of record other than the October 2012 formal claim. Because the Veteran’s claim was submitted more than a year after the liberalizing law (May 8, 2001), the effective date can be no earlier than one year before the date of claim under 38 C.F.R. § 3.114. As noted above, the Veteran did not file a formal or informal claim for service connection for diabetes under the dates required for Nehmer. Accordingly, those exceptions do not apply to permit an earlier effective date. Therefore, based on the evidence of record and the applicable VA regulations, the earliest date allowable for the award of service connection for the Veteran’s diabetes is October 1, 2011—one year before the Veteran’s service connection claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.114, 3.400. The Board acknowledges the Veteran’s belief that the evidence showing he was diagnosed with diabetes before May 2001 means that the service connection grant should extend back further than October 1, 2011, and appreciates that the Veteran partnered with VA in providing pertinent evidence. This belief is understandable given the complexity of the intertwined regulations involved. In addition, this evidence allowed VA to assign an effective date one year earlier than the first date assigned. However, under the above analysis, the law does not permit VA to assign effective dates based solely on having a diagnosis for which service connection is later granted; the law also requires consideration of the date of the claim. In this case, VA extended the period back one year from the date of the Veteran’s October 2012 claim under an exception to the general rule. However, because the record does not show an earlier informal or formal claim for diabetes, an earlier effective date prior to October 1, 2011 is not warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel