Citation Nr: 1801140 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-00 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to a service-connected posttraumatic stress disorder (PTSD), coronary artery disease (CAD), or diabetes mellitus (DM) type II. 2. Entitlement to an initial compensable disability rating for service-connected non-proliferative retinopathy and cataract. 3. Entitlement to an initial disability rating in excess of 30 percent for service-connected CAD. 4. Entitlement to an initial disability rating in excess of 20 percent for service-connected DM. 5. Entitlement to an effective date earlier than February 2, 2010, for the grant of service connection for DM. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011, March 2012, and December 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. The relevant documents are located in both VBMS and LCM. The issues of entitlement to service connection for hypertension and entitlement to increased ratings for non-proliferative retinopathy and cataracts, CAD, and DM, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. No rating decision prior to December 2011 addressed service connection for DM. 2. The Veteran did not file a formal or informal claim for benefits for service connection for DM, prior to May 3, 1989, or in between that date and May 8, 2001. 3. The earliest claim for DM was filed on February 2, 2010. 4. The Veteran had a diagnosis of DM prior to May 8, 2001. CONCLUSION OF LAW The criteria for an effective date of February 2, 2009, but no earlier, for the grant of service connection for DM, have been met. 38 U.S.C. §§ 5101 (a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.314, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Earlier Effective Date Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). VA must look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, during this time period, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). 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); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110(g) (2012); 38 C.F.R. § 3.114(a) (2017). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114(a). Ordinarily, 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. Presumptive service connection for type II diabetes mellitus was initially established, effective July 9, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). The effective date was later amended to May 8, 2001. See 69 Fed. Reg. 31,882 (June 8, 2004). Nevertheless, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816 (2017); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007). The Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). A covered herbicide disease includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. 38 C.F.R. § 3.816(b)(2). Presumptive service connection for type II diabetes mellitus was initially established, effective July 9, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). The effective date was later amended to May 8, 2001. See 69 Fed. Reg. 31,882 (June 8, 2004). The Nehmer regulations 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 for 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 (here May 8, 2001). 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, unless a claim was filed within one year of service discharge. 38 C.F.R. § 3.816(c)(1), (c)(2), (c)(3). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4). The Veteran filed his first claim for entitlement to service connection for DM on February 2, 2010. The Veteran's personnel records demonstrated Vietnam service on "brown water" vessels. VA medical records showed a diagnosis of DM in 2002. No prior submission to VA constitutes a claim for benefits. In a December 2011 rating decision, the RO granted service connection for diabetes on a presumptive basis and assigned a 20 percent disability rating, effective February 2, 2010. The Veteran later submitted documentation from the State of California Employment Development Department insurance program. The Explanation of Benefit Payment record noted the diagnosis of diabetes mellitus in March 1991. In this case, the Veteran was granted presumptive service connection for diabetes based on exposure to herbicide agents during such service. As such, he is a Nehmer class member. However, the Veteran was not denied compensation for diabetes between September 25, 1985, and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and May 8, 2001, the date on which the liberalizing law that added diabetes as a disease presumptively due to in-service exposure to herbicides became effective. Therefore, the effective date for the grant of service connection for diabetes must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Because the Veteran's claim was filed many years after he was discharged from service, as a general matter, the effective date would be the date of receipt of the claim, as that is later than the date entitlement arose. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. However, as noted above, a liberalizing law applies and the criteria for retroactive payment pursuant to 38 C.F.R. § 3.114 are applicable. Here, the Veteran's claim falls within 38 C.F.R. § 3.114(a)(3), as the claim was reviewed on his request in February 2010, which was more than 1 year after the effective date of the law (May 8, 2001). The claim does not fall under 38 C.F.R. § 3.114(a)(1) because there is nothing to suggest the claim was reviewed on either VA or the Veteran's initiative within one year from the effective date of the liberalizing law adding diabetes mellitus as a presumptive condition (within one year of May 8, 2001). The Veteran submitted a claim of entitlement to service connection for DM on February 2, 2010. His personnel records demonstrate Vietnam service. In addition, there is evidence that the Veteran had DM in 1991. VA treatment records from December 2002 show a diagnosis of DM. In a December 2012 statement, the Veteran indicated that he was unable to obtain medical records from his treatment prior to that date. However, he did submit a payment voucher reflecting services rendered in 1991 for diagnosed DM. The Board finds that this submission demonstrates that the Veteran had DM as early as 1991. Based on this evidence, the Board finds that the Veteran met all eligibility criteria for service connection for diabetes, specifically, service in Vietnam, a diagnosis of diabetes on the effective date of the liberalizing law that allows presumptive service connection for diabetes based on herbicide exposure, or May 8, 2001, and continuously through the date his claim was received. Because he submitted a claim of entitlement of service connection for DM until February 2, 2010, an earlier effective date of February 2, 2009, as determined by 38 C.F.R. § 3.114(a)(3) is warranted. ORDER Entitlement to an effective date of February 2, 2009, but not earlier, for the grant of service connection for diabetes mellitus, type II, is granted. REMAND First, remand is required for the Veteran's claim of entitlement to service connection for hypertension. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). In a December 2012 claim, the Veteran submitted a claim of entitlement to service connection for hypertension, asserting that it is secondarily related to his service-connected PTSD. The record has also raised the theory that hypertension is secondarily related to the Veteran's service-connected diabetes mellitus. VA provided an opinion in August 2013 for the Veteran's claim. A VA examiner opined that hypertension was not caused or aggravated by service-connected PTSD. The examiner provided rationale for this conclusion. In a September 2010 VA examination, the examiner diagnosed essential hypertension, and opined that it was not aggravated by DM. Conversely, in an April 2014 VA examination, the examiner concluded that DM at least as likely as not permanently aggravated hypertension. No rationale was provided in either the September 2010 VA examination or the April 2014 VA examination. The Board finds that the record is inadequate for the purposes of adjudicating the Veteran's claim of entitlement to service connection for hypertension. There are positive and negative opinions regarding an aggravating link between service-connected DM, but neither opinion is supported by a rationale. They are therefore inadequate for adjudication purposes. The Board finds that remand is appropriate to afford the Veteran a new examination that addresses all theories of entitlement. In addition, the Veteran's exposure to herbicides during his service has been conceded. While hypertension is not listed on the exclusive list of presumptive diseases due to herbicide exposure under 38 C.F.R. § 3.309(e), the NAS IOM's Veterans and Agent Orange: Update 2010 concluded that there was "limited or suggestive" evidence of an association between herbicide exposure and hypertension. See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 at 694. Therefore, on remand, a medical opinion should be obtained determining whether the Veteran's hypertension stems from his presumed exposure to herbicides. Second, the Board finds that remand is appropriate to provide examinations for the Veteran's claims of entitlement to increased initial ratings for service-connected non-proliferative retinopathy and cataract, CAD, and DM. The most recent examinations for these disabilities were conducted in 2014, over three years prior. In an August 2017 appellate brief, the Veteran's representative asserted that the Veteran's conditions were worse than they were when originally rated. The passage of time, alone does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (noting that the passage of time alone, without an allegation of worsening, does not warrant a new examination); VAOPGCPREC 11-95 (April 7, 1995). However, the representative also suggested that the conditions for which increased ratings are claimed had worsened. In such cases, a new examination is warranted. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. Is it at least as likely as not (50 percent or greater probability) that hypertension is due to Agent Orange exposure during service, despite the fact that hypertension is not a presumptive condition. The examiner must address The National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 discussed in the Federal Register. b. Is it at least as likely as not (50 percent or greater probability) that hypertension was caused by service-connected diabetes mellitus, type II, coronary artery disease, and/or PTSD. c. Is it at least as likely as not (50 percent or greater probability) that hypertension was aggravated by service-connected diabetes mellitus, type II, coronary artery disease, and/or PTSD. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected non-proliferative retinopathy with cataracts. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire (DBQ). 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected coronary artery disease. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate DBQ. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected diabetes mellitus, type II. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate DBQ. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 9. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs