Citation Nr: 18150791 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-40 833 DATE: November 16, 2018 ORDER An effective date prior to May 17, 2012 for the grant of service connection for diabetes mellitus, type II, (diabetes mellitus) is denied. REMANDED Service connection for hypertension is remanded. Service connection for left leg lower (LLE) extremity neuropathy is remanded. Service connection for right leg lower (RLE) extremity neuropathy is remanded. Entitlement to a rating in excess of 60 percent for service-connected coronary artery disease (CAD) is remanded. Entitlement to a rating in excess of 60 percent for service-connected renal dysfunction/nephropathy is remanded. Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus is remanded. Entitlement to a compensable evaluation for service-connected residual surgical scar is remanded. FINDING OF FACT The first communication from the Veteran to VA evidencing an intent to file a claim of service connection for diabetes mellitus was received on May 17, 2012. CONCLUSION OF LAW An effective date prior to May 17, 2012 for the grant of service connection for diabetes mellitus is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1967 to May 1969 and May 1969 to May 1975. Entitlement to an effective date prior to May 17, 2012 for the grant of service connection for diabetes mellitus The Veteran contends he is entitled to an effective date prior to May 17, 2012 for the grant of service connection for diabetes mellitus. Specifically, the Veteran’s representative contends that a November 5, 2008 letter should be considered an informal claim for benefits. See February 2018 attorney letter. Unless specifically provided otherwise, the 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 receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. For VA compensation purposes, a “claim” is defined 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). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Board finds the May 17, 2012 letter from the Veteran to Senator Lincoln does not meet the required elements of a claim for service connection benefits. A review of the claims file shows a March 1998 rating decision awarded nonservice-connected pension for hypertension. In June 2008, those benefits were discontinued and VA informed the Veteran he owed an overpayment debt. On November 5, 2008, VA received a copy of a letter from the Veteran to Senator Lincoln. The letter stated his pension was cut off in July 2008 and VA claimed he owed $64,000. He stated his wife passed away and the bills were piling up, which he could not pay because he had no income. He reported VA told him he might be able to get a hardship waiver. He stated, “I am 100% disabled and have heart problems, diabetic, high blood pressure, and got shot in the back. I would appreciate if you could work my case.” On November 17, 2008, his nonservice-connected pension was reinstated. In December 2008, VA approved the Veteran’s request for waiver of indebtedness for hardship. The Board finds the November 5, 2008 letter from the Veteran to Senator Lincoln did not show intent to file for service connection benefits for diabetes mellitus, therefore it does not meet the elements required of a claim. The Veteran was requesting help from the Senator regarding his pension benefits and his overpayment debt. He did not indicate any intent to file for service connection or that his diabetes was related to service. The Board finds the first communication from the Veteran to VA evidencing intent to file a claim of service connection for diabetes mellitus was received on May 17, 2012. The Board considered whether the Veteran is entitled to an earlier effective date for the grant of service connection for diabetes mellitus under 38 C.F.R. § 3.816. Although the Veteran is a Nehmer class member and diabetes mellitus is a covered herbicide disease, the Veteran has not contended nor is there evidence in the claims file that (1) VA denied compensation for diabetes mellitus in a decision issued between September 25, 1985 and May 3, 1989; (2) a claim for disability compensation for diabetes mellitus was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the regulation establishing a presumption of service connection for diabetes mellitus, which was May 8, 2001; or (3) a claim for disability compensation for diabetes mellitus was received within a year of separation from service. 38 C.F.R. § 3.816(c). Therefore, the effective date of the award shall be determined in accordance with the general effective date regulations. 38 C.F.R. § 3.816(c)(4). Accordingly, the Board finds the preponderance of the evidence does not support granting service connection for diabetes mellitus prior to May 17, 2012. REASONS FOR REMAND 1. Service connection for hypertension 2. Service connection for LLE diabetic neuropathy 3. Service connection for RLE diabetic neuropathy The Veteran’s attorney contends the Veteran did not receive notice of the scheduled VA examinations for hypertension and diabetic neuropathy because notification was sent to the wrong address and a copy was not sent to the attorney. See February 2018 attorney letter. The Board finds this contention is supported by the record. Remand is required for new examinations to be scheduled. 4. Entitlement to a rating in excess of 60 percent for service-connected CAD 5. Entitlement to a rating in excess of 60 percent for service-connected renal dysfunction/nephropathy 6. Entitlement to a rating is excess of 20 percent for service-connected diabetes mellitus 7. Entitlement to a compensable evaluation for service-connected residual surgical scar The Veteran contends he is entitled to increased ratings for his service-connected CAD, renal dysfunction/nephropathy, diabetes mellitus, and surgical scar. VA examinations were last provided in April 2013 for these conditions. The Board finds more recent examinations are needed to adjudicate the current severity of the above-mentioned service-connected conditions. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s hypertension. The examiner should opine: (a.) Whether the Veteran’s hypertension at least as likely as not (50 percent or greater probability) manifested in service or is etiologically related to service? (b.) Whether the Veteran’s hypertension is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected diabetes mellitus? (c.) Whether the Veteran’s hypertension is at least as likely as not (i) proximately due to or (ii) aggravated beyond its natural progression by his service-connected coronary artery disease? The examiner should consider the June 2013 notice of disagreement and attached medical article submitted by the Veteran’s representative. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the etiology of the tingling sensation in the Veteran’s lower extremities. See May 2012 statement. (a.) Identify whether the Veteran has a diagnosis of diabetic neuropathy for either or both lower extremities. (b.) If a diagnosis other than diabetic neuropathy is identified, is at least as likely as not the condition is (i) proximately due to or (ii) aggravated beyond its natural progression by any of his service-connected conditions? The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease (CAD). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to CAD alone and discuss the effect of the Veteran’s CAD on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding the Veteran’s symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to diabetes alone and discuss the effect of the Veteran’s diabetes on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding the Veteran’s symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected renal dysfunction/nephropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to renal dysfunction/nephropathy alone and discuss the effect of the Veteran’s renal dysfunction/nephropathy on any occupational functioning and activities of daily living. If it is not possible to provide a specific opinion regarding the Veteran’s symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residual surgical scar, status post quadruple bypass surgery. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. If it is not possible to provide a specific opinion regarding the Veteran’s symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel