Citation Nr: 18154772 Decision Date: 11/28/18 Archive Date: 11/30/18 DOCKET NO. 18-05 793A DATE: November 28, 2018 ORDER Entitlement to an effective date prior to January 27, 2006, for the awards of service connection for diabetes mellitus with associated peripheral neuropathy of the bilateral upper and lower extremities is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus prior to February 12, 2013, is remanded. Entitlement to an initial evaluation in excess of 20 percent for diabetic neuropathy of the right upper extremity prior to March 29, 2013, and in excess of 40 percent thereafter, is remanded. Entitlement to an initial evaluation in excess of 20 percent for diabetic neuropathy of the left upper extremity prior to March 29, 2013, and in excess of 30 percent thereafter, is remanded. Entitlement to an initial evaluation in excess of 10 percent for diabetic neuropathy of the right sciatic nerve prior to March 29, 2013, and in excess of 40 percent thereafter, is remanded. Entitlement to an initial compensable evaluation for diabetic neuropathy of the right femoral nerve prior to March 29, 2013, and in excess of 10 percent thereafter, is remanded. Entitlement to an initial evaluation in excess of 10 percent for diabetic neuropathy of the left sciatic nerve prior to March 29, 2013, and in excess of 40 percent thereafter, is remanded. Entitlement to an initial compensable evaluation for diabetic neuropathy of the left femoral nerve prior to March 29, 2013, and in excess of 10 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due service-connected disabilities (TDIU) prior to February 12, 2013, is remanded. FINDINGS OF FACT The Veteran’s initial claim of service connection for diabetes mellitus and associated complications, including peripheral neuropathy of the bilateral upper and lower extremities, was received by VA on January 27, 2006; there is no evidence of any claim for compensation benefits of record prior to that date. CONCLUSIONS OF LAW The criteria for an effective date prior to January 27, 2006, for the awards of service connection for diabetes mellitus with associated peripheral neuropathy of the bilateral upper and lower extremities are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1969 to September 1970, with service in the Republic of Vietnam. The procedural history of this appeal is complicated. Initially, this matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which awarded an effective date of January 27, 2006, for the awards of service connection for the Veteran’s diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities. The Veteran submitted a timely January 2017 notice of disagreement, and after issuance of an August 2017 statement of the case— which denied effective dates prior to January 27, 2006, for the awards of service connection for diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities—and a re-issuance of that statement of the case in January 2018, the Veteran submitted a timely March 2018 substantive appeal, VA Form 9. Accordingly, the Board finds that it nominally has jurisdiction over the claims for earlier effective dates for the awards of service connection for diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities at this time and the Board will address those issues at this time. However, the Board reflects that it appears that the Agency of Original Jurisdiction (AOJ) has misconstrued the appellate issues in this case, and the Board will explain further the import of that misconstruction in the Remand section. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. On appeal, the Veteran has asserted that he was diagnosed with diabetes mellitus in 2006 and has contended that he should be awarded service connection for his diabetes mellitus and associated neurological complications beginning in 2006. He has repeatedly indicated that he desires a 100 percent evaluation since 2006. He has also asserted that his illness and diabetes began in 1999, although he very clearly indicates that his 100 percent evaluation and award of service connection should be in 2006 throughout the appeal period. The evidence of record very clearly documents that the Veteran’s initial claim of service connection for diabetes mellitus and any associated complications was received on January 27, 2006. There is no evidence of any claim for compensation benefits received by VA prior to that date for any disability. Consequently, the Board finds that the effective date assigned for the awards of service connection for diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities has been properly assigned on January 27, 2006, in this case, as that is the date the Veteran’s claim was received; as no claim existed prior to that date, the Board is unable to award any date prior to January 27, 2006, for the awards of service connection in this case and insofar as that claim is before the Board at this time it is denied. See 38 C.F.R. §§ 3.102, 3.400. REASONS FOR REMAND As noted above, the Veteran initially filed his claim for service connection on January 27, 2006. The AOJ denied service connection for diabetes mellitus in a June 2006 rating decision. The Veteran requested to reopen that claim of service connection in June 2010. Following a May 2011 VA diabetic examination, the AOJ denied service connection for diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities in a June 2011 rating decision. The Veteran submitted a timely notice of disagreement with that decision in June 2011. The AOJ issued a December 2011 statement of the case as to those 5 issues, and the Veteran completed appeal of those issues by submitting a January 2012 substantive appeal, VA Form 9. Prior to certification of that completed appeal to the Board, the AOJ issued a February 2013 rating decision that awarded service connection for diabetes mellitus and granted a 20 percent evaluation for that disability; service connection for bilateral upper and lower extremities was also awarded at that time and those disabilities were assigned 20 percent evaluations for the upper extremities and 10 percent evaluations for the lower extremities at that time as well. All of those awards were assigned as effective June 25, 2010—the date VA received the Veteran’s claim to reopen service connection for diabetes. The Veteran was informed of that decision on February 19, 2013. In March 2013, the Veteran and his representative submitted additional medical evidence respecting the severity of the Veteran’s diabetes. Such evidence was resubmitted by the Veteran’s representative in July and August 2013. In a February 27, 2014 Report of General Information, VA Form 21-0820, the Veteran contacted VA and requested the status of his claim for increased evaluation. It does not appear that the AOJ had construed the submission of the evidence as a claim for increase, although following the February 2013 contact, the AOJ issued duty to assist letter in March 2014, to which the Veteran resubmitted in March 2014 the November 2012 and March 2013 letters that he stated he sent to the AOJ along with the March 2013 medical evidence. Based on this evidence, the Veteran was afforded an April 2014 VA diabetic examination. In an August 2014 rating decision, the AOJ awarded service connection for peripheral neuropathy of the bilateral lower femoral nerves and assigned a 10 percent evaluation for those disabilities, effective March 29, 2013, which is the date that the evidence demonstrated the presence of those disabilities. The AOJ additionally awarded the Veteran a 100 percent evaluation for his diabetes and special monthly compensation for housebound benefits on February 12, 2013 at that time. The AOJ additionally increased the peripheral neuropathy of the right upper extremity to 40 percent disabling and the left upper extremity to 30 percent disabling, and of the bilateral sciatic nerves to 40 percent disabling, all effective March 29, 2013, which was the date of a factually ascertainable increase of those disabilities. In February 2015, the Veteran submitted a Notice of Disagreement, VA Form 21-0958, with that decision and attached an October 2014 letter. In that October 2014 letter, the Veteran indicated that he wanted to challenge the “dates” of that decision. He indicated in that letter that he was diagnosed with diabetes in 1999, although he did not understand the ramifications of that diagnosis until 2006. He indicated that he was unable to work due to his diabetes beginning in 2000. He specifically requested that the AOJ reconsider an award of service connection back to 2006 at that time. In May 2016, the AOJ issued a rating decision that awarded service connection for diabetes mellitus and peripheral neuropathy of the left lower extremity and right upper extremity beginning on January 27, 2006; the AOJ additionally “increased” the peripheral neuropathy of the right lower extremity and left upper extremity to 10 percent and 20 percent disabling, respectively, beginning on January 27, 2006 at that time. Curiously, there is no mention of the awards of service connection regarding the right lower and left upper extremities, although implicitly based on those awards would indicate that service connection for those disabilities was January 27, 2006. Additionally, there is no mention of the ratings assigned for the diabetes, and right upper extremity and left lower extremity disabilities in that rating decision. The Veteran submitted a timely Notice of Disagreement, VA Form 21-0958, with the May 2016 rating decision, as noted above; in an attached letter, however, the Veteran indicated that the compensation he received was “not based on the 100% disability as of January 27, 2006.” He further stated that he wanted his 100 percent evaluation “backdated to the year 2006.” He additionally indicated, again, that he was not able to work since 1999 due to his diabetes and associated neurological disabilities. The Veteran concluded that he was “asking that the calculation of compensation be revisited.” In short, although not explicitly stated, the May 2016 rating decision implicitly re-considered and re-evaluated and assigned disability ratings for the Veteran’s diabetes mellitus and associated peripheral neuropathy of the bilateral upper and lower extremities. The Veteran very clearly submitted a timely Notice of Disagreement and articulated that he disputed the initially assigned disability ratings for those disabilities. Furthermore, the Veteran has raised entitlement to TDIU as a result of his service-connected disabilities throughout the appeal period, and such a claim is intertwined with the claims for increased evaluation raised in the January 2017 Notice of Disagreement. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although, as noted above, the AOJ construed these statements to be an appeal of the effective date awards of service connection, the Veteran’s statements in his Notice of Disagreement very clearly indicate that he was disputing the assigned evaluations for his diabetes and associated peripheral neuropathy of the bilateral upper and lower extremities. As no statement of the case has been issued with respect to those issues as of this decision, a remand is necessary in order for such to be accomplished in this case. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c). The matters are REMANDED for the following action: Furnish to the Veteran and his representative a statement of the case with regard to the claims of increased initial evaluations of his diabetes mellitus and associated peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, to include both sciatic and femoral nerves, as well as entitlement to TDIU prior to February 12, 2013. The issues should be returned to the Board only if a timely substantive appeal is received. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel