Citation Nr: 1807620	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-27 345	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date earlier than May 31, 2012 for the award of service connection for diabetes mellitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel


INTRODUCTION

The Veteran had active service from January 1969 to November 1970, from May 1973 to February 1976 and from May 1973 to February 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In April 2017, the Veteran provided testimony at a videoconference hearing.  A transcript of the hearing is of record.


FINDING OF FACT

On May 31, 2012 (more than a year following the Veteran's separation from active service), VA received the Veteran's original claim of entitlement to service connection for diabetes mellitus; a January 2013 rating decision granted service connection for diabetes mellitus, effective May 31, 2012.


CONCLUSION OF LAW

An effective date earlier than May 31, 2012, for the award of service connection for diabetes mellitus is not warranted.  38 U.S.C. § 5110 (West 2012); 38 C.F.R. 
§ 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Earlier Effective Date

The Veteran is seeking an effective date earlier than May 31, 2102, for the award of service connection for diabetes mellitus.  

Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. §§ 3.400, 3.401 (2017). 

The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of receipt of the new claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r). 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  
38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. 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.  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.  38 C.F.R. § 3.155(a).

The evidence in this case shows that the Veteran served in the Vietnam War.  He filed a claim for service connection for diabetes mellitus on May 31, 2012.  An October 2012 report from a private physician indicated that the Veteran was diagnosed with diabetes mellitus on September 2, 2011.  The RO granted service connection for diabetes mellitus with an effective date of May 31, 2012, the date that the claim for service connection was received.  

Notably, at the time the claim for service connection for diabetes mellitus was received on May 31, 2012, the Veteran's representative attached a copy of a September 9, 2011 correspondence requesting service connection for diabetes mellitus and stated that this was the original claim requesting service connection for the disorder.  Accordingly, the Veteran's representative alleges that the effective date for the grant of service connection for diabetes mellitus should be September 9, 2011.  

However, a review of the claims file shows that there is no indication that the Veteran or his representative had filed any claim of service connection for diabetes mellitus prior to the claim received by VA on May 31, 2012.  A claim for service connection for diabetes mellitus dated September 9, 2011 is simply not of record prior to the copy submitted by the representative in May 2012.  

While the Veteran and his representative allege otherwise, there is no documentation of receipt of any claim prior to May 31, 2012 that may serve as a basis for further revision of the effective date for the award of service connection for diabetes mellitus, and the Board finds no persuasive indication that any further development could feasibly establish the filing of any such claim at an earlier date.  Accordingly, the Board concludes that May 31, 2012 (the date of the claim that led to the award of service connection for diabetes mellitus) is the earliest possible effective date for the grant of service connection for diabetes mellitus.  

The appeal for an earlier effective date for diabetes mellitus is without legal merit, and must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).



ORDER

An effective date prior to May 31, 2012 for the award of service connection for diabetes mellitus is denied.




____________________________________________
	U. R. POWELL	
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs