Citation Nr: 20021610 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-23 269 DATE: March 26, 2020 ORDER Entitlement to an effective date prior to September 20, 2013, for the award of service connection for prostate cancer is denied. Entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity is denied. Entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetic peripheral neuropathy of the sciatic nerve of the right lower extremity is denied. Entitlement to an effective date prior to September 20, 2013, for the award of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetes is denied. REMANDED Entitlement to an initial rating in excess of 20 percent disabling for service-connected diabetes mellitus is remanded. Entitlement to an initial rating in excess of 20 percent disabling for service-connected prostate cancer is remanded. Entitlement to an initial rating in excess of 20 percent disabling for service-connected diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent disabling for service-connected diabetic peripheral neuropathy of the sciatic nerve of the right lower extremity is remanded. Entitlement to a compensable initial rating for service-connected erectile dysfunction is remanded. Entitled to an increased level of special monthly compensation under 38 U.S.C. § 1114, subsection (k) and 38 C.F.R. § 3.350 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to an initial rating in excess of 20 percent disabling for service-connected peripheral neuropathy of the left upper extremity is remanded. Entitlement to an initial rating in excess of 20 percent disabling for service-connected peripheral neuropathy of the right upper extremity is remanded. Entitlement to an effective date prior to July 25, 2017, for the award of service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an effective date prior to July 25, 2017, for the award of service connection for peripheral neuropathy of the right upper extremity is remanded. FINDINGS OF FACT 1. The February 2012 rating decision that denied service connection for diabetes mellitus and for prostate cancer is final. 2. On September 20, 2013, the Veteran submitted an informal claim for service connection for diabetes mellitus and prostate cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to September 20, 2013, for the award of service connection for prostate cancer have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 2. The criteria for entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 3. The criteria for entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetic peripheral neuropathy of the sciatic nerve of the right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 4. The criteria for entitlement to an effective date prior to September 20, 2013, for the award of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 5. The criteria for entitlement to an effective date prior to September 20, 2013, for the award of service connection for diabetes have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1961 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board is taking jurisdiction over the matters of entitlement to higher initial ratings for service-connected peripheral neuropathy of the left and right upper extremities, and entitlement to an effective date prior to July 25, 2017, for the award of service connection for peripheral neuropathy of the left and right upper extremities, for the limited purpose of ordering corrective action pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). In Rice v. Shinseki [22 Vet. App. 447 (2009)], the U.S. Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for a total disability rating-whether expressly raised by a Veteran or reasonably raised by the record-is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. In the present case, the Veteran has raised the issue of a TDIU, and this issue is thus before the Board. Effective Dates Entitlement to an effective date prior to September 20, 2013, for the award of service connection for prostate cancer, for diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity, for diabetic peripheral neuropathy of the sciatic nerve of the right lower extremity, for erectile dysfunction, and for diabetes is denied. The Veteran seeks effective dates prior to September 20, 2013, for the awards of service connection for diabetes mellitus, prostate cancer, erectile dysfunction, and peripheral neuropathy of the left and right left lower extremities. He asserts he previously filed compensation claims for these disabilities, and earlier effective dates are therefore warranted. In the July 2017 rating decision on appeal, the RO awarded the Veteran service connection for diabetes mellitus, prostate cancer, erectile dysfunction, peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity. These awards were made effective September 20, 2013, the date of receipt of the claim for these benefits. In this regard, review of the record reveals the Veteran submitted a VA Form 9 and related documentation regarding prior service connection denials, in a February 2012 rating decision, for diabetes and prostate cancer. The RO determined that these documents were untimely as to the prior appeal, which was no longer pending and had become final, and accepted them as a new informal claim, which was subsequently granted in July 2017. The Veteran seeks earlier effective dates for these awards. The effective date for a grant of service connection will be the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service. 38 U.S.C. § 5110(a); 38 C.F.R.§ 3.400(b)(2)(i). Where a claim has not been filed within one year after separation from service, the law provides that the effective date of a compensation award 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. Id. Regulations defining a “claim” were revised, effective March 24, 2015. The regulation in effect prior to March 2015 defined a “claim” as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1 (p). With regard to informal claims, the regulation in effect prior to March 2015 stated that “[a]ny communication or action, indicating intent to apply for one or more benefits under the laws administered by the [VA]...may be considered an informal claim. Such informal claim must identify the benefit sought.” See 38 C.F.R. § 3.155 (a). The March 2015 revisions eliminated informal claims and required claims to be on specific standard forms. As noted above, an effective date of September 20, 2013 was granted for the service-connected disabilities at issue based on the receipt on that date of an informal claim for service connection for diabetes mellitus and prostate cancer. Review of the record confirms that on April 21, 2011, VA received from the Veteran a VA Form 21-4138, Statement in Support of Claim, in which the Veteran requested service connection for diabetes and for prostate cancer. These claims were denied in a February 2012 rating decision. The Veteran then filed a notice of disagreement which was received on August 24, 2012. He was next sent a statement of the case on February 12, 2013. Thereafter, a VA Form 9 or other substantive appeal was not received until September 20, 2013. This VA Form 9 and related documentation was determined to be untimely for the purposes of perfecting the prior appeal, and was accepted instead as a new informal claim for these same benefits. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Upon review of the entirety of the record, the Board finds the RO correctly determined that the prior February 2012 rating decision had become final, and properly treated the September 2013 VA Form 9 as a claim to reopen. Indeed, in its July 2017 decision awarding the Veteran service connection for prostate cancer and diabetes mellitus, the Board determined the February 2012 rating decision was in fact final. The Veteran did not at the time contest that factual determination, and has not subsequently provided additional specific arguments or evidence regarding entitlement to an earlier effective date. The Veteran has also not asserted, and the record does not suggest, mental incompetency, lack of receipt of notice, or other extraordinary circumstances which would support equitable tolling of the deadline to perfect the prior appeal. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curium order). Therefore, the Board finds that general rules with respect to the effective date for an award of service connection based on a claim reopened after a final disallowance are applicable in this case and require that the effective date for such claims be the latter of the date entitlement arose or the date VA received the claim. Indeed, the U.S. Court of Appeals for Veterans Claims (Court) has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008). Thus, the effective date for the grants of service connection for diabetes mellitus and prostate cancer can be no earlier than September 20, 2013, as that is the date of receipt of the reopened claim following a final disallowance. Likewise, as the awards of service connection for peripheral neuropathy of the lower extremities and for erectile dysfunction are secondary to the awards of service connection for diabetes mellitus and prostate cancer, an effective date prior to September 20, 2013 for these disabilities is also not warranted. As a preponderance of the evidence is against the award of earlier effective dates for these service connection awards, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND Entitlement to initial ratings in excess of 20 percent disabling for service-connected diabetes mellitus, prostate cancer, diabetic peripheral neuropathy of the sciatic nerve of the left lower extremity is remanded, diabetic peripheral neuropathy of the sciatic nerve of the right lower extremity, and a compensable initial rating for erectile dysfunction are remanded. The Veteran seeks increased ratings for diabetes, prostate cancer, peripheral neuropathy of the lower extremities, and erectile dysfunction. According to a February 2020 VA Form 21-6789, Deferred Rating Decision, prior attempts to obtain private treatment records from Drs. A.A. and D.R.L. were rejected, and these treatment records remain outstanding. A January 2020 internal VA memorandum from the VA’s Private Medical Records Retrieval Center stated that the records request was rejected due to a missing request authorization form, and a subsequent request with the completed form is required. As VA has notice of outstanding pertinent private treatment records, remand is required in order for these records to be obtained. In the alternative, the Veteran may obtain these records and submit them on his own behalf. Entitled to an increased level of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350, and entitlement to a TDIU are remanded. The Veteran has pending claims for a TDIU and for an increased level of special monthly compensation. Adjudication of these claims must also be deferred, as these issues are inextricably intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Entitlement to initial ratings in excess of 20 percent disabling for service-connected peripheral neuropathy of the left and right upper extremities, and entitlement to an effective date prior to July 25, 2017, for the award of service connection for peripheral neuropathy of the left and right upper extremities are remanded. In an August 2017 rating decision, the Veteran was awarded service connection, with initial ratings of 20 percent effective July 25, 2017, for peripheral neuropathy of the left and right upper extremities. The Veteran then filed a September 2017 VA Form 21-0958 Notice of Disagreement regarding, in part, the initial ratings and effective dates of these awards. The agency of original jurisdiction (AOJ) has yet to issue the Veteran a statement of the case regarding these issues. Under these circumstances, the Board is obliged to remand these issues to the AOJ for the issuance of a statement of the case. See Manlincon, 12 Vet. App. at 240-41. The matters are REMANDED for the following action: 1. The AOJ should furnish the Veteran and his representative with a statement of the case pertaining to the issues of entitlement to increased initial ratings and earlier effective dates for the awards of service connection for peripheral neuropathy of the left and right upper extremities. These issues should be returned to the Board only if an appeal is timely perfected. 2. The AOJ should attempt to obtain any outstanding private treatment records from Drs. A.A. and D.L. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Julie C. Unger Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thomas D. Jones, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.