Citation Nr: 18149496 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-35 965 DATE: November 9, 2018 ORDER Entitlement to an effective date earlier than January 22, 2015, for the grant of service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran did not appeal a December 2007 rating decision denying service connection for diabetes mellitus. 2. On January 22, 2015, VA received the Veteran’s request to open a claim for service connection for diabetes. CONCLUSION OF LAW The criteria for an effective date earlier than January 22, 2015, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Effective date for service connection for diabetes The Veteran contends that the effective date for service connection for his diabetes should be earlier than the existing date of January 22, 2015. He asserts that the date should be based on his earlier, 2007, claim for service connection for diabetes. In June 2007 the Veteran submitted a claim for service connection for type II diabetes mellitus, claimed as attributable to his herbicide exposure during service in Vietnam. In a December 2007 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for diabetes. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after the decision is issued. 38 U.S.C. § 7105 (2012). The Veteran did not file an NOD with the December 2007 rating decision or submit new and material evidence during the one-year appeal period. That decision thus became final. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b) (2012). On January 22, 2015, the RO received the Veteran’s claim for service connection for several disorders. That claim included a request to reopen a claim for service connection for diabetes. The RO granted reopening of the claim. The RO then considered the service connection claim on its merits, and granted service connection for diabetes. The RO made service connection effective January 22, 2015. The assignment of effective dates of awards of VA disability compensation is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). The United States Court of Appeals for Veterans Claims (Court) has indicated that the Board of Veterans’ Appeal (Board) must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In a September 2015 NOD with the effective date, the Veteran contended that the effective date should be June 15, 2007, based on his original claim for service connection for diabetes. He indicated that records show that he was diagnosed with diabetes by then. He stated that with the 2007 claim he submitted records showing his glucose levels. In a July 2016 substantive appeal, the Veteran stated that VA treatment records show that his diabetes had been diagnosed by September 2007. He asserted that the VA treatment evidence was not considered in the December 2007 rating decision. He contended that an effective date based on the 2007 VA treatment records should be assigned. In the Veteran’s June 2007 claim, he indicated that his diabetes was treated by a private physician in Palm Springs, California. He submitted private laboratory records from 2006 and 2007. Those records show his glucose and A1C levels. In a July 2007 letter to the Veteran, the RO discussed the evidence needed to support his claim for service connection for diabetes. The RO informed him that medical evidence showing the time of the diagnosis and earliest symptoms of his diabetes would be relevant to the claim. The RO stated that he could complete release forms allowing the RO to request relevant medical records, or he could submit such records himself. In September 2007 the Veteran responded that he had no other information or evidence to give VA to substantiate his claim. In the December 2007 rating decision, the RO indicated that it considered the laboratory records that the Veteran submitted. The RO found that those records showing glucose levels, but did not provide a clear diagnosis of diabetes. After the Veteran filed his January 2015 claim, additional medical records were added to the claims file. Private treatment records show a September 2007 diagnosis of diabetes by the Veteran’s primary care provider. There is no indication of a diagnosis in VA treatment records until March 2011. The Veteran did not appeal the December 2007 rating decision denying service connection for diabetes, and that rating decision became final. VA received no communication from the Veteran indicating an intent to file a claim after the December 2007 rating decision until he submitted his January 2015 claim to reopen. His January 2015 claim therefore was a claim to reopen a claim after final disallowance. Under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), the effective date of the award is the date of receipt of the claim or the date entitlement arose, whichever is later. The RO received the claim on January 22, 2015. Entitlement to service connection arose earlier, when diabetes became manifest in the Veteran, who served in Vietnam and is presumed to have been exposed to an herbicide such as Agent Orange. The effective date is the later of those events, which is the date of receipt of the claim, January 22, 2015. The Board therefore denies an earlier effective date. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel