Citation Nr: 21009419 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-39 727 DATE: February 22, 2021 ORDER Entitlement to an effective date of April 29, 2014 for service connection for peripheral neuropathy, right upper extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for peripheral neuropathy, left upper extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for femoral nerve peripheral neuropathy, left lower extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for femoral nerve peripheral neuropathy, right lower extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for peripheral neuropathy of the sciatic nerve, left lower extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for peripheral neuropathy of the sciatic nerve, right lower extremity is granted. Entitlement to an effective date of April 29, 2014, for service connection for erectile dysfunction is granted. Entitlement to an effective date of April 29, 2014, for entitlement to special monthly compensation based on loss of use of a creative organ is granted. FINDINGS OF FACT 1. The April 29, 2014 statement submitted by the Veteran was liberally construed by the AOJ as a claim for an increased rating for diabetes; the date of the April 29, 2014 claim is later than the date entitlement arose. 2. The evidence submitted in April 2014 did not constitute new and material evidence after the issuance of an April 2014 rating decision, so as to entitle the Veteran to an earlier effective date for his claims. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for peripheral neuropathy, right upper extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 2. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for peripheral neuropathy, left upper extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 3. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for femoral nerve peripheral neuropathy, left lower extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 4. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for femoral nerve peripheral neuropathy, right lower extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 5. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for peripheral neuropathy of the sciatic nerve, left lower extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 6. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for peripheral neuropathy of the sciatic nerve, right lower extremity have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 7. The criteria for an earlier effective date of April 29, 2014, but not earlier, for service connection for erectile dysfunction have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). 8. The criteria for an earlier effective date of April 29, 2014, but not earlier, for entitlement to special monthly compensation based on loss of use of a creative organ have been met. 38 U.S.C. § 5108, 5110; 38 C.F.R. § 3.156, 3.400(b)(2)(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1968 to August 1969, and from August 1969 to July 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 Decision, the Board denied the above-captioned earlier effective date claims. In a September 2020 Order, the Court of Appeals for Veterans Claims (the Court) vacated the December 2019 Board decision, and remanded the case to the Board for adjudication consistent with the terms of a September 2020 Joint Motion for Remand (JMR). Effective Date 1. Entitlement to an effective date prior to October 16, 2014, for service connection for peripheral neuropathy, right upper extremity 2. Entitlement to an effective date prior to October 16, 2014, for service connection for peripheral neuropathy, left upper extremity 3. Entitlement to an effective date prior to October 16, 2014, for service connection for femoral nerve peripheral neuropathy, left lower extremity 4. Entitlement to an effective date prior to October 16, 2014, for service connection for femoral nerve peripheral neuropathy, right lower extremity 5. Entitlement to an effective date prior to October 16, 2014, for service connection for peripheral neuropathy of the sciatic nerve, left lower extremity 6. Entitlement to an effective date prior to October 16, 2014, for service connection for peripheral neuropathy of the sciatic nerve, right lower extremity 7. Entitlement to an effective date prior to October 16, 2014, for service connection for erectile dysfunction 8. Entitlement to an effective date prior to October 16, 2014, for entitlement to special monthly compensation based on loss of use of a creative organ The Veteran was awarded service connection for the above-captioned issues in a December 2014 rating decision, effective October 16, 2014. Each of the claimed disabilities were granted as secondary to the Veteran’s service-connected diabetes mellitus type II, which was granted in an April 2014 rating decision, effective September 30, 2013. The Veteran argues that an earlier effective date is warranted for his secondary service-connection claims and his grant of special monthly compensation. In the September 2020 JMR, the parties agreed that the Board erred in denying the instant claims for two reasons. First, the parties agreed that the Board erred by failing to address whether an April 2014 submission of evidence was an informal claim for increase that would entitle the Veteran to an earlier effective date for his claims. Second, the JMR noted that the Board did not address whether the Veteran submitted any “new and material evidence” after the issuance of an April 2014 rating decision. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. By way of history, the Board points out that the original claim for service-connection for diabetes was submitted in September 2013. The Veteran did not include any of the secondary conditions in question in his original claim; however, the Veteran did include along with his diabetes claim, a claim for service-connection for an eye condition as secondary to diabetes. The Veteran was then scheduled for an examination in relation to his diabetes claim, but he did not attend. Nonetheless, an opinion was rendered, and he was granted service connection for diabetes in an April 2014 rating decision. Four days after the issuance of the rating decision, the Veteran called the RO and gave an explanation for missing the examination and requested that a new one be scheduled. The Veteran also did not raise the issue of any of the secondary claims at that time. The Board now turns to the question of whether an effective date prior to October 16, 2014 for the service connection for the condition is warranted. The AOJ liberally construed the April 2014 submission of private medical records dated between 2005 and 2007 as a claim for an increased rating for diabetes. The October 2014 VA examination was provided to the Veteran based on that claim for increased rating. The findings of that examination showed the first evidence of a diagnosis of diabetic peripheral neuropathy and erectile dysfunction due to diabetes. Resolving any doubt in favor of the Veteran, the Board finds that the effective date for the grant of service connection for PN and ED should be April 29, 2014, the date of the submission of private treatment records which the AOJ construed as a claim for an increased rating for the service-connected diabetic condition. The VA examiner noted that the PN had its onset in 2009 and ED had its onset in 2012. An earlier effective date for the grant of service connection for those conditions is not warranted as the effective date must be the later of the date of claim or the date entitlement arose. As the date of claim is April 29, 2014, that is the earliest date that service connection can be awarded for those conditions. (Continued on the next page)   The provisions of 3.156(b) do not provide for an earlier effective date, as the Veteran’s initial claim for service connection was for diabetes and for an eye condition related to diabetes. There was no claim submitted for service connection for PN or ED. The evidence at the time of the April 2014 rating decision did not show a diagnosis of PN or ED related to DM, as indicated in the September 2014 rating decision. The Board finds that April 29, 2014 is the earliest date that service connection may be awarded for neuropathy of the right and left upper extremities, right and left lower extremities femoral nerve peripheral neuropathy, left and right lower extremities peripheral neuropathy of the sciatic nerve, right lower extremity peripheral neuropathy of the sciatic nerve, erectile dysfunction and special monthly compensation based on loss of use of a creative organ. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate 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 C.F.R. § 20.1303.