Citation Nr: 21008251
Decision Date: 02/12/21	Archive Date: 02/12/21

DOCKET NO. 21-00 133
DATE: February 12, 2021

ORDER

The claim for an effective date of prior to April 22, 2011 for service connection for type II diabetes mellitus (DM) is dismissed.

FINDING OF FACT

The claim for an earlier effective date for service connection for DM is a freestanding earlier effective date claim.  The Veteran has not contended that the rating decision that initially granted service connection and assigned an effective date for DM was the product of clear and unmistakable error (CUE).

CONCLUSION OF LAW

The Board does not have jurisdiction over the freestanding claim for an earlier effective date for service connection for DM.  38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1968 to December 1970.

The Board remanded the Veteran’s claim for the issuance of a statement of the case (SOC) in December 2020.  The AOJ has since issued the SOC and the Veteran appealed the claim to the Board.  The Board’s December 2020 decision also remanded several other claims that have not been recertified and jurisdiction remains with the Agency of Jurisdiction (AOJ).

Effective Date prior to April 22, 2011 for Service Connection for DM

In a July 2012 rating decision, the AOJ granted service connection for DM effective April 22, 2011.  The Veteran did not file an appeal within the applicable time contesting the effective date.  38 U.S.C. § 7105(c).  

Rather, on December 13, 2017, the Veteran filed an increased rating claim for DM, which the AOJ denied in a January 2018 decision.  In a July 2018 notice of disagreement (NOD), the Veteran appealed the AOJ’s decision and indicated he was entitled to an increased rating and an earlier effective date for DM.  Neither the Veteran nor his representative has alleged CUE in the July 2012 rating decision that assigned an effective date for the grant of service connection for DM.

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The Veteran first asserted entitlement to an earlier effective date for service connection for DM pursuant to Nehmer in an April 2020 VA Form 9.  The Nehmer provisions apply to the effective date of the grant of service connection for a covered herbicide disease under § 3.309(e).  The Veteran is a Nehmer class member and DM is a covered herbicide disease.  But the Veteran did not contest the effective date of the grant of service connection for DM in a timely manner.  The Board therefore cannot adjudicate the earlier effective date claim as it represents a freestanding claim, which is not permitted.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Hence, the Nehmer provisions are inapplicable.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	E. Mine

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.