Citation Nr: 21074007 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 20-14 870 DATE: December 13, 2021 ORDER 1. Entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the left lower extremity sciatic nerve, associated with diabetes mellitus, is denied. 2. Entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the right lower extremity sciatic nerve, associated with diabetes mellitus, is denied. 3. Entitlement to an effective date prior to September 14, 2015 for the grant of service connection for diabetes mellitus is denied. REMANDED 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity sciatic nerve, associated with diabetes mellitus is remanded. 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity sciatic nerve, associated with diabetes mellitus, is remanded. 5. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic neuropathy affecting the femoral and internal saphenous nerves is remanded. 6. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy affecting the femoral and internal saphenous nerves is remanded. 7. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The facts found in the claims file do not support a finding that peripheral neuropathy of the left lower extremity affected the sciatic nerve prior to December 20, 2016. 2. The facts found in the claims file do not support a finding that peripheral neuropathy of the right lower extremity affected the sciatic nerve prior to December 20, 2016. 3. There is no formal claim, informal claim, or written intent to file a claim prior to September 14, 2015 for diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the left lower extremity sciatic nerve, associated with diabetes mellitus, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 U.S.C. § 3.400 (2020). 2. The criteria for entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the right lower extremity sciatic nerve, associated with diabetes mellitus, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 U.S.C. § 3.400 (2020). 3. The criteria for entitlement to an effective date prior to September 14, 2015 for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 U.S.C. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1960 to April 1963 and from June 1963 to June 1966. The Board remanded these matters in June 2020 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review as to the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The June 2020 Board remand included the issue of entitlement to service connection for a skin disability. A May 2021 rating decision granted entitlement to service connection for a skin disability, and as this constitutes a full grant of the benefit sought, this issue is no longer on appeal. Effective Date Except as otherwise provided, the effective date of an award of compensation based on an original claim shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 3.400. 1. Entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the left lower extremity sciatic nerve, associated with diabetes mellitus. 2. Entitlement to an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the right lower extremity sciatic nerve, associated with diabetes mellitus. Initially, the Board acknowledges that the Veteran does have a diagnosis of a peripheral neuropathy and was awarded service connection for peripheral neuropathy under Diagnostic Code 8526, which provides ratings for paralysis of the anterior crural nerve (femoral), with an effective date of September 14, 2015, the date at which the Veteran first filed a claim for peripheral neuropathy. The Board also acknowledges that the service-connected peripheral neuropathy of the bilateral lower extremity sciatic nerve is associated with diabetes mellitus, for which service connection was granted effective September 14, 2015. However, as noted above, service connection is awarded based upon facts found or the date the claim is received by VA, whichever is later. In this case, the Board finds the preponderance of the evidence is against finding that the Veteran has sciatic nerve involvement in either lower extremity prior to December 20, 2016. Specifically, at a February 2016 VA examination, despite noting that the Veteran had a diagnosis of bilateral lower extremity neuropathy with involvement of the anterior crural (femoral) nerve and internal saphenous nerve, the examiner specifically documented that the sciatic nerve in both the right and left lower extremity was normal. As noted above, the Veteran is separately service connected for the involvement of the anterior crural (femoral) nerve. Thus, as the preponderance of the evidence documents that the sciatic nerve was normal prior to December 20, 2016 and the symptoms documented on the February 2016 VA examination are fully compensated for under another diagnostic code, the Board finds the facts found do not support an effective date prior to December 20, 2016 for the grant of service connection for peripheral neuropathy of the bilateral lower extremity sciatic nerve. 3. Entitlement to an effective date prior to September 14, 2015 for the grant of service connection for diabetes mellitus is denied. The Veteran filed a claim for bilateral lower extremity neuropathy, which did not include a claim for diabetes mellitus. In a March 2016 rating decision, service connection for bilateral lower extremity neuropathy, associated with herbicide exposure, was granted. In a December 2016 Notice of Disagreement, the Veteran reported that he was still not service-connected for diabetes mellitus despite the fact that he had a diagnosis of diabetes mellitus. In December 2016 the Veteran filed a formal claim for service connection for diabetes mellitus, which was granted with an effective date of December 20, 2016 in a March 2017 rating decision. In an April 2017 Notice of Disagreement, the Veteran challenged the rating and effective date assigned for diabetes mellitus. In a March 2020 rating decision, the effective date for diabetes mellitus was adjusted to September 14, 2015, the date at which the Veteran filed the initial claim for peripheral neuropathy. The peripheral neuropathy was initially granted as due to herbicide exposure. However, the diagnosed peripheral neuropathy was later found to be associated with diabetes mellitus. Thus, the AOJ construed the claim for peripheral neuropathy to include a claim for diabetes mellitus and awarded the earlier effective date based on the date the claim for service connection for peripheral neuropathy was received. Prior to September 14, 2015, the Veteran had not submitted a claim, formal or informal, involving a claim for service connection for diabetes mellitus or any claim that could be reasonably construed as a claim for diabetes mellitus. Thus, the Board finds that September 14, 2015 is the earliest date upon which service connection may be granted as this is the date VA was in receipt of the claim for service connection for peripheral neuropathy. Although entitlement to the benefit may have arisen earlier than September 14, 2015, the claim was not received until September 14, 2015. The statute provides that the effective date of an award of compensation based on an original claim shall be fixed in accordance with the facts found but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). Because the claim was not received until September 14, 2015 and the effective date can be no earlier than date the claim was received, an earlier effective date for the grant of service connection for diabetes mellitus is legally precluded. Furthermore, to the extent that the Veteran complained of, or was treated for, diabetes mellitus prior to the effective date assigned, the Board notes that the date of a treatment record does not constitute an informal claim when service connection has not yet been established. See 38 U.S.C. § 3.157; Lalonde v. West, 12 Vet. App. 377 (1999). REASONS FOR REMAND 4. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the left lower extremity sciatic nerve, associated with diabetes mellitus. 5. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity sciatic nerve, associated with diabetes mellitus. 6. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic neuropathy affecting the femoral and internal saphenous nerves. 7. Entitlement to an initial rating in excess of 20 percent for left lower extremity diabetic peripheral neuropathy affecting the femoral and internal saphenous nerves. Regrettably, the Board finds a remand is necessary to determine the nature and severity of the peripheral neuropathy of the bilateral lower extremities as there is some discrepancy in the VA examinations provided throughout the period on appeal. The Veteran was provided an initial VA examination in February 2016. The examiner, when assessing the affected nerves, documented abnormalities that affected the right anterior crural (femoral) nerve and the internal saphenous nerve. The Veteran was provided another VA examination in February 2017. The examiner, when assessing the affected nerves, documented abnormalities in the anterior crural (femoral) nerve, consistent with the February 2016 VA examination. The examiner also documented that the sciatic nerve, musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve, and internal popliteal (tibial) nerve were all affected. The examiner did not check any boxes related to the remaining nerves in the lower extremities, including the internal saphenous nerve which the Board notes was documented to have abnormalities at the February 2016 VA examination. Subsequent VA examinations of the peripheral nerves were provided in April 2021 and August 2021. Each of these examination reports, when assessing the affected nerves, continued to document that the sciatic nerve and the femoral nerve (anterior crural) were affected, consistent with the February 2016 VA examination. However, neither the April 2021 or August 2021 examination report documents any affect to the musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve, internal popliteal (tibial), or the internal saphenous nerve. Thus, the Board is unable to determine whether the February 2017 VA examination was an inaccurate assessment of the affected nerves given the discrepancies between the February 2017 VA, the initial February 2016 VA examination, and the April 2021 and August 2021 VA examinations; if the April 2021 and August 2021 VA examinations were inadequate as they did not fully assess the nature of the bilateral lower extremity peripheral neuropathy; or if both examinations were adequate and complete and the peripheral neuropathy, at least as it relates to the impact on some nerves, had resolved and/or improved over time. Thus, the Board finds a VA examination is necessary to reconcile these examinations and determine which nerves are affected by the peripheral neuropathy throughout the entire period on appeal. 8. Entitlement to a rating in excess of 20 percent for diabetes mellitus. Regrettably, the Board finds that a remand is necessary for the claim for entitlement to a rating in excess of 20 percent for diabetes mellitus. Since the May 2021 statement of the case (SOC) was issued addressing the claim, VA treatment records and a VA examination for diabetes mellitus have been associated with the claims file since the issuance of the May 2021 SOC and prior to the case being transferred to the Board. 38 U.S.C. § 19.37 (stating that evidence received by the agency of original jurisdiction prior to transfer of the records to the Board after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition). These records are relevant to the claim for a rating in excess of 20 percent for diabetes mellitus. As such, a supplemental statement of the case (SSOC) must be issued. 9. Entitlement to TDIU. The issue of entitlement to TDIU is inextricably intertwined in the other issues remanded herein, and thus, this issue must also be remanded. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the diagnosed peripheral neuropathy. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The examiner is asked to address the discrepancies in the affected nerves between the February 2016 VA examination, which noted that the right anterior crural (femoral) nerve and internal saphenous nerve were affected; the February 2017 VA examination, which noted that the sciatic nerve, musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve, internal popliteal tibial nerve, and anterior crural (femoral) nerves, but not the internal saphenous nerve, were affected; and the April 2021 and August 2021 VA examinations, which noted that only the sciatic nerve and the femoral nerve (anterior crural) were affected. The examiner is asked to provide an opinion as to the adequacy of each of these examinations given the discrepancies in the affected nerves over the course of the three examinations and document which nerves were at least as likely as not affected throughout the period on appeal. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. (Continued on the next page) 2. After review of the VA treatment records obtained after the issuance of the May 2021 SOC, complete any other additional development necessary based on these records and issue an SSOC as to the issues on appeal, including entitlement to a rating in excess of 20 percent for diabetes mellitus. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Keninger, 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 U.S.C. § 20.1303.