Citation Nr: 18155646 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-23 176A DATE: December 4, 2018 ORDER Entitlement to an effective date of May 31, 2000 for the grant of service connection for type 2 diabetes mellitus (type 2 diabetes) is granted. Entitlement to revision of a September 2012 rating decision on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is dismissed. FINDINGS OF FACT 1. The Veteran, a Nehmer class member, has had type 2 diabetes since approximately 1982, prior to May 31, 2000, the date he first submitted a claim seeking service connection for this disability. 2. The September 2012 rating decision to which the Veteran seeks revision on the basis of CUE did not become final with regard to the effective date assigned for the establishment of service connection for type 2 diabetes because the Veteran submitted correspondence disagreeing with the effective date assigned within the one-year appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 31, 2000, for the grant of service connection for type 2 diabetes have been met. 38 U.S.C. §§ 1154(a), 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.114, 3.155, 3.400, 3.816. 2. Revision of the September 2012 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 is dismissed as the rating decision was not final. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1969 to October 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO processed the Veteran’s January 2013 correspondence as a claim seeking revision of a prior rating decision on the basis of CUE, the Board notes that the Veteran disagreed with September 2012 rating decision to the extent that it assigned an effective date of July 7, 2010, for establishment of service connection of type 2 diabetes. As this notice of disagreement was received by VA within one year of the September 2012 rating decision, the Board finds that the issue of entitlement to an earlier effective date is properly on appeal. Earlier Effective Date The Veteran seeks an effective date earlier than July 7, 2010 for the grant of service connection for type 2 diabetes. The Board finds that an effective date of May 31, 2000, the date his original claim for service connection was received by VA, is warranted. Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim based on presumptive service connection will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400(b)(2)(i), (ii). However, VA has promulgated special rules for the effective dates for the grant 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 Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam veteran who has been diagnosed with a disorder presumptively-associated with herbicide exposure, to include type 2 diabetes. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder 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. See 38 C.F.R. § 3.816(c)(1)-(3). However, 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. See 38 C.F.R. § 3.816(c)(4). Under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. Type 2 diabetes was added to the list of presumptive service-connected diseases due to herbicide exposure in Vietnam under 38 C.F.R. § 3.309(e) effective May 8, 2001. Liesegang v. Sec’y of Veterans Affairs, 312 F.3d 1368, 1371 (Fed. Cir. 2002). However, District Court orders have created an exception to the generally applicable rules in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. See Nehmer I, supra at 1409. The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. That regulation defines a “Nehmer class member” to include a Veteran who has or died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i), (b)(2)(i). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). The Veteran first sought service connection for diabetes in a claim received by VA on May 31, 2000. The RO denied service connection in a July 2000 rating decision because diabetes was not at that time included among the diseases to which presumptive service connection was warranted. The Veteran later sought to reopen his previously denied claim and, in a September 2012 rating decision, the RO granted service connection for type 2 diabetes on a presumptive basis. As the record reflects that the Veteran served in Vietnam and was granted presumptive service connection for type 2 diabetes based on presumed exposure to herbicides during such service, the Board finds that the provisions of 38 C.F.R. § 3.816 apply. Furthermore, because the Veteran’s claim was received on May 31, 2000, which is between May 3, 1989 and May 8, 2001, the Board finds that the effective date shall be assigned according to 38 C.F.R. § 3.816(c)(2), which provides that the proper effective date is the date the Veteran’s original claim was received, or the date the disability arose, whichever is later. The effective date assigned by the RO is July 7, 2010, the date VA received the Veteran’s most recent claim to reopen his previously denied claim of entitlement to service connection for type 2 diabetes. However, the evidence of record shows that the Veteran has had type 2 diabetes since the early 1980s. See July 2012 VA Examination Report; July 2004 Opinion of Dr. P.J.M; May 2010 Opinion of Dr. D.M.H. Because the record shows that the Veteran’s claim was received by VA on May 31, 2000 and his type 2 diabetes manifested prior to the date of claim, the Board finds that May 31, 2000 is the appropriate effective date for service connection for type 2 diabetes pursuant to the provisions of 38 C.F.R. § 3.816. Revision on the Basis of CUE The Board finds that revision of the September 2012 rating decision cannot be granted as a matter of law because that rating decision did not become final. Section 3.105(a) provides that a previous RO determination that is final and binding will be reversed or amended where evidence establishes that the decision contained CUE. Thus, revision of prior rating decisions is only available where the rating decision being challenged has become final. In a September 2012 rating decision, the RO granted service connection for type 2 diabetes and assigned an effective date of July 7, 2010. In January 2013, the Veteran submitted written correspondence expressing his disagreement with the effective date assigned in the September 2012 rating decision. During the relevant time, a “notice of disagreement” (NOD) was defined as a written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an AOJ and a desire to contest the result. 38 C.F.R. § 20.201. Special wording was not required. 38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). Within this framework, the U.S. Court of Appeals for Veteran’s Claims (the Court) has liberally interpreted the statements by a veteran to be an NOD. Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010), rev’d sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011) (citing Anderson v. Principi, 18 Vet. App. 371, 375 (2004)). In light of this precedent, the Board finds that the Veteran’s January 2013 correspondence seeking revision of the September 2012 rating decision to express his disagreement with the effective date assigned for the grant of service connection for type 2 diabetes. Once a claim has been placed in appellate status by the filing of an NOD, it cannot be resolved by any further RO decision that does not grant the benefit sought in full. Jones v. Shinseki, 23 Vet. App. 122, 125 (2009) (where a claim is placed in appellate status by virtue of filing of an NOD, a subsequent RO decision does not resolve the appeal), aff’d, 619 F.3d 1368 (Fed. Cir. 2010); Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (citing Myers v. Principi, 16 Vet. App. 228 (2002)) (once an NOD has been filed, further RO decisions cannot resolve the appeal that remains pending before the Board; only a subsequent Board decision can resolve an initiated, but not completed, appeal). Here, the Veteran’s claim was place in appellate status by the filing of the NOD, and as such, only an adjudication by the Board could resolve his appeal. Thus, because the September 2012 rating decision did not become final, the Veteran’s claim seeking revision of that decision on the basis of CUE cannot stand as a matter of law, and it is dismissed. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel