Citation Nr: 21009151 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-32 663A DATE: February 19, 2021 ORDER Entitlement to an effective date of September 11, 2006 for the award of service connection for diabetes mellitus, type II, is granted. Entitlement to an effective date of September 11, 2006 for the award of secondary service connection for diabetic peripheral neuropathy of the bilateral lower extremities is granted. FINDINGS OF FACT 1. The Veteran initially applied for service connection for diabetes mellitus, type II, (diabetes) in September 2006 and for service connection for diabetic peripheral neuropathy of the bilateral lower extremities as secondary to diabetes in October 2006, which claims were originally denied in a February 2009 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance, and it is final. 2. In January 2013, the Veteran filed an application to reopen his previously denied claims for service connection for diabetes and diabetic peripheral neuropathy, which the RO denied in a November 2013 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance, and it is final. 3. In January 2016, the Veteran again filed an application to reopen his previously denied claims for diabetes and neuropathy. Although initially denied, the Veteran’s claims were reopened, and service connection was granted for diabetes and neuropathy in a January 2019 rating decision with an effective date of January 5, 2016 assigned. 4. New and relevant service records (including documents derived from official military records) were received after the November 2013 rating decision. 5. The RO reconsidered the Veteran’s claims for service connection for diabetes and diabetic peripheral neuropathy in the January 2019 rating decision and reopened and granted those claims assigning an effective date of January 5, 2016, the date the most recent claim to reopen for service connection for diabetes was deemed to be received. 6. The Veteran filed his initial claim for service connection for diabetes on September 11, 2006, and service connection for diabetic peripheral neuropathy was reasonably raised during VA’s processing of that claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of September 11, 2006, but no earlier, for the award of service connection for diabetes have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400. 2. The criteria for entitlement to an effective date of September 11, 2006, but no earlier, for the award of secondary service connection for diabetic peripheral neuropathy of the bilateral lower extremities have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from August 1964 to May 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) January 2019 rating decision. The Board acknowledges that the January 2019 rating decision indicates it was issued through the Rapid Appeals Modernization Program (RAMP) and that the Veteran attempted to submit a new RAMP Selection form in February 2019 in response thereto. However, in a February 2019 letter to the Veteran, the RO advised him that it was not accepting his RAMP Selection form. Rather, it accepted the Veteran’s legacy notice of disagreement (VA Form 21-0958) also filed in February 2019. Based on that submission, the RO issued a statement of the case (SOC) in October 2019 on the issues on appeal. The Veteran responded by filing a VA Form 9 in November 2019 perfecting an appeal in the legacy system. The Board finds that the Veteran’s appeal is not eligible for consideration under RAMP or the new appeals system (referred to as AMA – Appeals Modernization Act) because he did not make an election of a review lane on the February 2019 RAMP Selection form and he did not opt-in from a statement of the case or supplemental statement of the case. The Board acknowledges that the Veteran indicated he needed VA’s help as to what is the appropriate option to select. However, VA can only advise what options are available to appeal a decision, which it did in the January 2019 decision notice. It can neither advise the Veteran of what appeal option is best for him nor make that option for him. Hence, as the Veteran filed a legacy appeal and the RO has continued to process this appeal in the legacy system, the Board will proceed to consider the appeal under the legacy system as that is favorable to the Veteran.   1. Entitlement to an effective date prior to January 5, 2016 for the award of service connection for diabetes The Veteran seeks an effective date earlier than January 5, 2016, for the award of service connection for diabetes. The Veteran does not assert that any clear and unmistakable errors occurred in any prior decision denying his service connection claim, but rather he contends that the effective date should be September 11, 2006, the date he filed his original claim for service connection. He argues that it should not matter when it was recognized that his ship was eligible for application of the presumption of exposure to herbicide agents, and he was determined to have been aboard ship. See VA Form 9. The Veteran initially filed a claim for service connection for diabetes as due to exposure to herbicide agents in Vietnam in September 2006, which claim was denied in a February 2009 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.156(b). In January 2013, the Veteran applied to reopen the prior decision, which was denied in a November 2013 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.156(b). In January 2016, the Veteran filed an intent to file and a completed application again seeking to reopen the previously denied claim for service connection for diabetes. Initially, the RO denied his claim to reopen in March 2016 and November 2016 rating decisions. The Veteran disagreed with those decisions and perfected an appeal by filing a VA Form 9 in October 2017. Subsequently, in the January 2019 rating decision on appeal, the Veteran’s claim was reopened and service connection for diabetes was granted based on evidence received from the Veteran, his service records and documents derived from official military records indicating that the Veteran was aboard the USS Bennington (CVS-20) in December 1966 when it entered Qui Nhon Bay Harbor to pick up Bob Hope on December 26th. An effective date of January 5, 2016 was assigned as the date the Veteran’s recent petition to reopen his previously finally denied claim for service connection was deemed received. The Veteran disagrees with the effective date assigned and contends that his effective date should be the date he filed his original claim for service connection in September 2006. “[VA] is required to ‘reopen’ a finally adjudicated claim under 38 C.F.R. § 3.156(a) if the claimant submits new and material evidence in support of the claim. ‘Reconsideration’ of a claim is required by 38 C.F.R. § 3.156(c)(1) if [VA] receives official service department records that existed but had not been associated with the claims file when [VA] first decided the claim. ”In the case of an award that results from reopening under section 3.156(a), the effective date of the award is the date the request for reopening was made or the date of entitlement, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2); Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). If an award that results from reconsideration under section 3.156(c) was based in whole or in part on the newly obtained records, the award will be made effective on the date the original claim was received (or the date of entitlement if that is later than the date of receipt of the claim). 38 C.F.R. § 3.156(c)(3).” Jones v. Wilkie, 964 F.3d 1374, 1378-79 (Fed. Cir. 2020). Reconsideration of the initial claim is required under 38 C.F.R. § 3.156(c)(1) if any new relevant official service records are received that were not associated with the claims file at the time of the initial decision on the claim. Id. at 1380. In the present case, the RO reopened the Veteran’s claim in the January 2019 rating decision based on new and material evidence. At that time, additional service records for the Veteran, including documents derived from official military records, were associated with the claims file that were not part of the record when VA previously denied the Veteran’s claim. The Board finds that these official military records existed at the time of the prior denials of the Veteran’s claim and are relevant to the inquiry before VA, i.e., whether the Veteran was exposed to herbicide agents in Vietnam. Therefore, the RO considered the newly associated service records, together with all the other evidence of record, in the January 2019 rating decision. Because the RO considered these new service records when it reopened and readjudicated the Veteran’s claim on the merits in the January 2019 rating decision, the Board finds that the RO “reconsidered” the Veteran’s claim per 38 C.F.R. § 3.156(c)(1). Thus, the only remaining question is what the effective of the award of service connection should be. In doing so, the key issue is whether the award of service connection was attributable in whole or in part to the newly obtained service records, as directed by 38 C.F.R. § 3.156(c). Id. The Board finds that the award of service connection was, at least in part, based upon the newly associated military records. These new military records confirm the Veteran’s presence aboard the USS Bennington in December 1966 as well as corroborate the Veteran’s allegations of being in the territorial waters off the coast of Vietnam while on the USS Bennington, i.e., in the Qui Nohn Bay harbor on December 26, 1966. Hence, the newly received service records establish that the Veteran is entitled to the presumption of exposure to herbicide agents under 38 C.F.R. § 3.307(a)(6). 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 for service connection “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 an evaluation and an 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 C.F.R. § 3.400. As the Board finds that the grant of the award of service connection was predicated, at least in part, on the new relevant service records received in conjunction with the Veteran’s present claim, the Board finds the effective date provisions of 38 C.F.R. § 3.156(c)(3) are applicable and grants an effective date back to the date of the Veteran’s initial claim for service connection, i.e., September 11, 2006. May 8, 2001 was the date that diabetes was added to the list of diseases eligible for presumptive service connection based on exposure to herbicide agents. 66 Fed. Reg. 23166 (May 8, 2001) (amending 38 C.F.R. § 3.309 to include diabetes). Diabetes was diagnosed in an August 2006 treatment record. Therefore, the date of receipt of claim was later than the date entitlement arose. The Board notes that this decision constitutes a full grant of the benefit sought on appeal as the record demonstrates the Veteran’s September 2006 application was the first claim he filed for service connection for diabetes, and he does not contend otherwise. For that reason, the Board finds that an effective date of September 11, 2006, but no earlier, is warranted for the award of service connection for diabetes, and the Veteran’s appeal is granted. 2. Entitlement to an effective date earlier than January 5, 2016 for the award of secondary service connection for diabetic peripheral neuropathy of the bilateral lower extremities In October 2006, the Veteran filed an informal claim for diabetic peripheral neuropathy of the bilateral lower extremities (neuropathy), which claim was denied in a February 2009 rating decision. However, the U.S. Court of Appeals for Veterans Claims has recently held that “pursuant to 38 C.F.R. § 3.155(d)(2), when entitlement to secondary service connection for non-voiding and non-renal residuals is raised while VA is evaluating service-connected prostate cancer, the claimant need not file a separate, formal claim for secondary service connection for those residuals. Instead, VA must consider those "complications" in connection with a properly initiated claim concerning the prostate cancer evaluation.” Bailey v. Wilkie, No. 19-2661, U.S. Vet. App. Jan. 6, 2021). The Board finds the circumstances of this case are similar. Therefore, the Board finds that the diabetic peripheral neuropathy claim reasonably arose from the initial September 11, 2006 claim for diabetes. In January 2013, the Veteran applied to reopen his previously denied claim for service connection for neuropathy, which was denied by the RO in a November 2013 rating decision. In January 2016, the Veteran filed a claim to reopen but only for service connection for diabetes. He did not apply to reopen his claim for service connection for neuropathy until January 2018. In a June 2018 rating decision, the RO denied reopening the Veteran’s claim for service connection for neuropathy. Prior to this rating decision, the Veteran had perfected an appeal as to the November 2016 rating decision that denied reopening his claim for service connection for diabetes. In the January 2019 rating decision on appeal, the RO granted entitlement to service connection for diabetes and neuropathy as secondary to diabetes and assigned an effective date of January 5, 2016, the date the Veteran’s most recent claim to reopen for service connection for diabetes was deemed to be received. The Veteran disagreed with the effective date assigned asserting that it should be the date he filed his original claim for diabetes in September 2006. As the grant of service connection for neuropathy was predicated on the grant of service connection for diabetes, the Board finds that the previous analysis under 38 C.F.R. § 3.156(c) applies to this issue as well. Therefore, the Board finds that the RO reconsidered the Veteran’s original claim for service connection for neuropathy in the January 2019 pursuant to 38 C.F.R. § 3.156(c)(1). In determining the appropriate effective date for the grant of service connection for the Veteran’s neuropathy, the Board grants an effective date as of the date the Veteran filed for service connection for diabetes on September 11, 2006. While the earliest medical evidence indicating he was diagnosed for the first time with “r/o [rule out] diabetic peripheral neuropathy” on September 26, 2006, and that “neuropathy” (without the “rule out” notation) was noted in a later October 30, 2006 treatment record, the Board finds it reasonable to assume that the Veteran’s peripheral neuropathy did not begin on September 26, 2006, and was in fact present on September 11, 2006, barely two weeks earlier, the date of claim. Therefore, the Board finds that an effective date of September 11, 2006, but no earlier, is warranted for the award of service connection for diabetic peripheral   neuropathy of the bilateral lower extremities as secondary to service-connected diabetes, and the Veteran’s appeal is granted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.