Citation Nr: 21062072 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-62 286 DATE: October 6, 2021 ORDER An effective date earlier than January 10, 2017 for the award of service connection for Parkinson's disease and secondary complications is denied. FINDINGS OF FACT 1. Veteran served in Korea, including near the Demilitarized Zone, from January 1971 to February 1972; he did not serve in the Republic of Vietnam. 2. In a final May 2013 rating decision, the agency of original jurisdiction denied service connection for Parkinson's disease; although physical examination reports revealed an intermittent right hand tremor since 2009, diagnostic imaging reports from 2011 and 2012 were reported as not consistent with Parkinson's disease. 3. The Veteran was diagnosed with Parkinson's disease in September 2016. 4. On January 10, 2017, VA received the Veteran's application to reopen the previously denied claim of service connection for Parkinson's disease. CONCLUSIONS OF LAW 1. The Veteran is not a Nehmer class member. 38 C.F.R. § 3.816. 2. The criteria for an effective date earlier than January 10, 2017 for the award of service connection for Parkinson's disease and secondary complications have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972, including service in Korea. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision. In June 2021, the Veteran testified at a Board telehearing; a transcript of the hearing is associated with the claims file. An effective date earlier than January 10, 2017 for the award of service connection for Parkinson's disease and secondary complications The rating decision on appeal granted service connection for Parkinson's disease and secondary complications, effective January 10, 2017, on the basis of the Veteran's presumed exposure to herbicides in the Korean Demilitarized Zone (DMZ) during an applicable time period as well as medical evidence showing a current diagnosis of Parkinson's disease and secondary complications. 38 C.F.R. §§ 3.307(a)(6)(iv); 3.309(e). The Veteran contends that an effective date of February 8, 2012 is warranted for the award of service connection for Parkinson's disease and secondary complications. See Notice of Disagreement (NOD) (July 26, 2017) and VA Form 9 (Nov. 30, 2017). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments apply to claims and appeals filed on or after March 24, 2015. The Veteran's claim from which this appeal arose was received on January 10, 2017. Prior to that amendment, VA accepted informal claims, defined as any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his representative, or certain others. Such informal claim must identify the benefits 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (prior to 2015). On February 8, 2012, VA received the Veteran's informal claim for service connection for Parkinson's disease claimed as due to exposure to Agent Orange during his military service in Korea. He had previously filed a formal claim for service connection for a left wrist disability. In a May 2013 rating decision, the agency of original jurisdiction (AOJ) denied the claim for service connection for Parkinson's disease because the medical evidence of record, including private and VA treatment records and an October 2012 fee-basis examination report, showed the Veteran had not been clinically diagnosed with Parkinson's disease. Instead, the evidence reflected a diagnosis of essential tremor of the right upper extremity. Notably, VA neurology treatment records reflect that he underwent examination and studies to evaluate his intermittent right upper extremity tremor. The impression of September 2011 brain imaging was normal uptake; findings not consistent with a Parkinsonian syndrome. The assessment of an August 2012 nuclear medicine DaTscan was essential tremor; DaTscan not consistent with Parkinson's disease. The AOJ notified the Veteran of the decision the same month. He did not initiate an appeal by filing a NOD or submit new and material evidence pertinent to the claim within the one-year appeal period following the notice of decision. Therefore, the May 2013 AOJ decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103 (prior to 2019). Neither he nor his representative contends otherwise. On January 10, 2017, VA received the Veteran's application to reopen the previously denied claim for service connection for Parkinson's disease. Along with his claim, he submitted a VA Parkinson's Disease Disability Benefits Questionnaire (DBQ) (VA From 21-0960C-1) completed by a private neurologist, W. Naguszewski, M.D. The report detailed that the Veteran was diagnosed with Parkinson's disease in September 2016 "but had a tremor for 7 years." A September 2016 examination report from Dr. Naguszewski reflects the Veteran's complaint of having right hand tremors for the past seven years and that he had been followed at VA for essential tremor. Following an examination, the impression was early Parkinson's disease, predominantly right hemiparkinsonism. In April 2017, the Veteran was afforded a VA examination. The diagnosis was Parkinson's disease. Manifestations included balance impairment, loss of automatic movements, right upper extremity tremor, muscle rigidity and stiffness in all extremities, sleep disturbance, constipation, and sexual dysfunction. In June 2021, the Veteran testified that he began to experience tremors in his hand in 2009 while at a family event. He testified that he first filed a claim for service connection for Parkinson's disease in February 2012 after he learned that Agent Orange had been used along the DMZ in South Korea and that Parkinson's disease was associated with exposure to Agent Orange. He described seeing a VA doctor for tremors since 2009 and being told that he had a tremor but not Parkinson's disease. He indicated he did not understand why the doctor would say he did have Parkinson's disease when he filed his claim in 2017 but "not in 2009 or 2012." Having considered the evidence of record, the currently assigned effective date of January 10, 2017 is the earliest effective date legally assignable for the award of service connection for Parkinson's disease and secondary complications. Here, the current effective date corresponds to the date VA received the Veteran's application to reopen his service connection claim for Parkinson's disease. The record contains no communication from the Veteran or his representative that can be construed as a claim to reopen the previously denied claim since the last final rating decision in May 2013 and prior to January 10, 2017, the date the claim was received. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Moreover, neither the Veteran nor his representative has identified any earlier claim. Similarly, although the evidence of record reflects a right hand tremor since 2009, which is a symptom associated with Parkinson's disease, examination and testing revealed the Veteran did not have Parkinson's disease at that time or during evaluations in 2011 or 2012. Instead, the earliest confirmed diagnosis of Parkinson's disease is from the September 2016 neurological evaluation by Dr. Naguszewski. Comparing the date of diagnosis (the date entitlement to presumptive service connection arose) to the date of receipt of claim, the proper effective date has been assigned because January 10, 2017 is later than September 2016. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, an effective date earlier than January 10, 2017 is not warranted for the award of service connection for Parkinson's disease and secondary complications. During the June 2021 hearing, the Veteran's representative suggested that an earlier effective date for Parkinson's disease and secondary complications may be warranted based on medical evidence documenting symptoms of right hand tremors in 2009 and subsequent medical evidence that eventually confirmed a diagnosis of Parkinson's disease in September 2016. Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). The liberalizing law that added Parkinson's disease to the list of diseases subject to presumptive service connection based on herbicide exposure became effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010); see also 38 C.F.R. § 3.309(e). An effective date for the award of service connection for Parkinson's disease may not be assigned earlier than the effective date of the final rule and implementing regulation that established presumptive service connection for Parkinson's disease based on herbicide exposure. Id. As a result, an effective date from 2009 when the Veteran's right hand tremor began is legally precluded. In any event, because competent private and VA medical evidence of record reflects that the Veteran was first diagnosed with Parkinson's disease in September 2016, an effective date for service connection could not be assigned earlier than that date. The Board reiterates that the medical evidence of record reflects evaluation for Parkinson's disease versus essential tremor based on the Veteran's symptom of right hand tremor since 2009. However, diagnostic testing was "not consistent with Parkinson's disease." Finally, the Board has considered whether an effective date is warranted from the date Parkinson's disease was diagnosed in September 2016 based on other liberalizing law or VA issue. In this regard, 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, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). A special regulation governs effective dates to be assigned based on liberalization of the presumptions of service connection for Veterans exposed to herbicides. 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). As pertinent to this case, a Nehmer class member is defined as a Vietnam veteran who has a disease which is presumed service-connected based on exposure to herbicides. 38 C.F.R. § 3.816(b)(1), (2). Although the Veteran is legally presumed to have been exposed to herbicides during his service in Korea and is now diagnosed with a covered herbicide disease, he is not a Nehmer class member for purposes of assigning an earlier effective date under 38 C.F.R. § 3.816 because his military service did not include service in the Republic of Vietnam. Because he is not a Nehmer class member, the Board cannot assign an earlier effective date under the provisions of 38 C.F.R. § 3.816 from September 2016 when he was diagnosed with Parkinson's disease. In addition, because the Veteran was not diagnosed as having Parkinson's disease within one year of the liberalizing law that added Parkinson's disease to the list of diseases subject to presumptive service connection based on herbicide exposure, entitlement to an earlier effective date under 38 C.F.R. § 3.114(a)(3) is not warranted. In summary, there is no legal basis for assigning an effective date earlier than January 10, 2017 for the award of service connection for Parkinson's disease and secondary complications, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.