Citation Nr: 21077074
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 18-11 757
DATE: December 28, 2021

ORDER

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is dismissed as a matter of law.

FINDING OF FACT

Service connection for diabetes mellitus, type II was severed effective September 1, 2019.

CONCLUSION OF LAW

The claim of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 3.400(o)(1).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1969 to October 1971, including in the Republic of Vietnam.

A brief procedural history of this appeal is necessary. An August 2007 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office (RO) denied service connection for "diabetes mellitus, type I (claimed as diabetes due to Vietnam service)."

In June 2016, the Veteran filed a claim for service connection for "diabetes type II" due to Agent Orange exposure in Vietnam. It appears "type II" was originally written but the second Roman numeral was crossed out by the Veteran. 

In a September 2017 rating decision, the RO granted service connection for diabetes mellitus, type II associated with herbicide exposure and assigned a 20 percent initial evaluation effective June 16, 2017. The Veteran appealed the initial rating, stating "diabetes evaluation  now a Type 1 that requires in[s]ulin." This appeal was perfected to the Board of Veterans' Appeals (Board).

During the pendency of the appeal, a February 2018 rating decision found a clear and unmistakable error in granting service connection for diabetes and proposed to sever service connection for diabetes because "the record shows it was type I, not type II."

In a May 2019 rating decision, service connection for diabetes mellitus, type II, was severed effective September 1, 2019 and the Veteran did not appeal that decision. The propriety of the severance is not before the Board.

A hearing was held before the undersigned Veteran's Law Judge in August 2021 on the increased rating claim; a transcript has been associated with the record.

A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. See 38 C.F.R. § 3.400(o)(1); see also for persuasive value only Andrion v. Shinseki, No. 10-2854, LEXIS 461, at *24-25 (Vet. App. Mar. 13, 2012) ("it should be self-evident to any claimant that a pending appeal seeking higher disability rating for a service-connected disorder is implicitly denied whenever an intervening final Board decision severs service connection for that disorder and concludes that it was clear and unmistakable error to award benefits for the disorder in the first place.")

The Board finds that the appeal must be dismissed because it seeks a retroactive increase for diabetes mellitus, type II when basic entitlement to that benefit has been terminated. 

Entitlement to a retroactive increase for diabetes is prohibited as a matter of law and the appeal must be dismissed.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Associate Counsel, S. Conti

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.