Citation Nr: 21002448 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-23 147 DATE: January 13, 2021 ORDER Entitlement to an earlier effective date for diabetes mellitus, type II, is denied. Entitlement to an earlier effective date for diabetic nephropathy is denied. FINDINGS OF FACT 1. The evidence of record is against finding that an effective date earlier than June 19, 2015 for the Veteran’s award of service connection for diabetes mellitus, type II, is warranted. 2. The evidence of record is against finding that an effective date earlier than June 19, 2015 for the Veteran’s award of service connection for diabetic nephropathy is warranted. 3. The Veteran does not have qualifying service on the land, inland waterways, or within the 12-nautical mile territorial sea of Vietnam. 4. The Veteran filed a claim for service connection for diabetes mellitus in June 2002, which was denied in a May 2003 rating decision and not reopened pursuant to a May 2004 rating decision. The Veteran did not appeal the May 2003 or May 2004 decisions and the decisions became final. 5. The Veteran filed a claim for service connection for diabetes mellitus in August 2012, which was denied in an August 2013 rating decision. The Veteran did not appeal that decision and the decision became final. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than June 19, 2015 for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 2. The criteria for entitlement to an effective date earlier than June 19, 2015, for service connection for diabetic nephropathy secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from June 1970 to March 1974 and from April 1991 to June 1991. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2020. The hearing transcript is of record. Effective Date 1. Entitlement to an earlier effective date for diabetes mellitus, type II Generally, the effective date of an award of service connection, to include on a secondary basis, is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In general, when VA compensation benefits (among other specified types of VA benefits) are awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA (Secretary) or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). In cases involving presumptive service connection due to herbicide exposure, there is an exception to these provisions. More specifically, VA has promulgated special rules for the effective dates for the award 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. See 38 C.F.R. § 3.816. The Board finds that the Veteran is not a Nehmer class member because he does not have qualifying service on land, in inland waterways, or within the 12-nautical mile territorial sea of Vietnam. See 38 U.S.C. § 1116(f); Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). The Board acknowledges the Veteran’s contentions in the November 2020 Board hearing that he spent 16 days in Vietnam, as well as the Veteran’s DD-214 that notes 16 days of foreign service and the Veteran’s DD-215 that evidences the award of a Vietnam Service Medal. However, a Vietnam Service Medal is not definitive evidence of in-country service. See Haas v. Peake, 525 F.3d 1168, 1188 (Fed. Cir. 2008). The Board also acknowledges the April 2017 submission of photographs of a commercial item reportedly purchased in Vietnam; however, this is also insufficient to evidence qualifying service. A review of the record uncovered no documentary evidence that the Veteran had qualifying in-country service. VA has undertaken development of this issue, to include developing relevant service department evidence. This development did not provide evidence from the service department of qualifying Vietnam service. In this regard, the Veteran’s DD 214 reflects a notation that the 16 days were in Indochina or Korea. This is not a specific notation of Vietnam service, and the service department record does not reflect notations reflective of service in the Republic of Vietnam. In previous adjudications, the AOJ made the appropriate inquiries and development and found the service department evidence did not reflect service in the Republic of Vietnam. In consideration of the thoroughness and objective nature of the service department records, the Board finds that the absence of service department evidence of service in the Republic of Vietnam to be highly probative. The Board finds that this official evidence if more probative on the question of where the Veteran served. The Board also notes the Veteran’s assertion that VA failed to fulfil its duty to assist in obtaining relevant personnel records. See November 2020 Board hearing. However, the record shows that in August 2013 the VA issued a Formal Finding that sufficient information to verify Agent Orange exposure does not exist, including a substantial list of efforts made to obtain relevant personnel records. The Board finds the Board has satisfied its duty to assist. See 38 U.S.C. § 5103A. The Board does not find that a remand to address these contentions is necessary, as there is no indication that the additional delay to do so would actually avail the Veteran of any benefit, and the current evidence is adequate for adjudication. Here, the Veteran was awarded presumptive service condition pursuant to 38 C.F.R. § 3.307(a)(6)(v), which covers individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individuals concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. However, the Nehmer holdings do not extend to the category of Veterans covered by 38 C.F.R. § 3.307(a)(6)(v). This provision does not constitute the addition of a new herbicide agent presumptive disease; therefore, the Nehmer holdings and subsequent consent decrees are not for application here. As such, the Nehmer exception does not apply. Moreover, 38 C.F.R. § 3.400 is also not for application in this case, as 38 C.F.R. § 3.307(a)(6)(v) was enacted pursuant to a liberalizing law governed by 38 C.F.R. § 3.114. Pursuant to 38 C.F.R. § 3.114, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for retroactive payment, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). 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). 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). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The Board notes that effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicide agents by expanding the regulation to include the group of veterans who had regular and repeated contact with C-123 aircraft. 38 C.F.R. § 3.307(a)(6)(v). This regulation was added after research disclosed that some C-123s were used to spray herbicide in Vietnam. See 80 Fed. Reg. 35, 246 (June 19, 2015). In this case, the Veteran met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law, as he was first diagnosed with diabetes mellitus in the late 1990s. See October 2015 VA examination. It is also conceded that the Veteran is a member of the class of veterans under 38 C.F.R. § 3.307(a)(6)(v). Moreover, the Veteran’s claim for service connection for diabetes mellitus was received in February 2015, a mere few months before, or within one year of, the effective date of the applicable liberalizing law. There is no indication from review of the record that he submitted any other informal claim for service connection for this condition prior to the claim of the February 2015; and there has been no specific contention to the contrary. There is also no indication that the Veteran submitted any other formal claims that were not adjudicated in rating decisions that became final; and there has been no specific contention to the contrary. The Veteran filed a service connection claim for diabetes mellitus in June 2002, which was denied in a May 2003 rating decision. In August 2003, the Veteran submitted a Form 21-4138, statement in support of claim, providing further information about his service history and medical treatment. The claim was not re-opened and service connection remained denied pursuant to a May 2004 rating decision. The Veteran did not appeal this rating decision or submit any relevant evidence within one year of notice of this rating decision, and it is therefore found to be a final decision. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed another service connection claim for this condition in August 2012, which was denied in an August 2013 rating decision. The Veteran did not appeal this rating decision or submit any relevant evidence within one year of notice of this rating decision, and it is therefore found to be a final decision. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Given the foregoing, the Board finds that the earliest possible effective date that may be awarded for service connection for diabetes mellitus, type II, is June 19, 2015. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for an effective date earlier than June 19, 2015 must be denied. 2. Entitlement to an earlier effective date for diabetic nephropathy In an October 2015 rating decision, the Veteran was awarded both presumptive service connection for diabetes mellitus, type II, and service connection for diabetic nephropathy secondary to diabetes mellitus, type II. The rating decision also assigned an effective date of June 19, 2015, which is the effective date of the applicable liberalizing law extending the presumptions regarding herbicide exposure to the category of veterans set out above. See 38 C.F.R. § 3.307(a)(6)(v); 80 Fed. Reg. 35, 246 (June 19, 2015). As such, and for the reasons set out above, the Board has no basis upon which to assign an earlier effective date for secondary service connection for diabetic nephropathy. As there is no legal basis for assignment of an earlier effective date, and because the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that entitlement to an effective date prior to June 19, 2015 for the award of service connection for diabetic nephropathy secondary to diabetes mellitus, type II, is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for an effective date earlier than June 19, 2015 must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED