Citation Nr: 21012517 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-01 371 DATE: March 8, 2021 ORDER Entitlement to an effective date earlier than October 25, 2013 for the grant of service connection for diabetes mellitus, type II (DMII) is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for the service-connected DMII is remanded. Entitlement to service connection for glaucoma, as secondary to the service-connected DMII, is remanded. FINDING OF FACT The Veteran’s claim of entitlement to service connection for DMII was received on October 25, 2013, more than a year after discharge from service. VA did not receive from the Veteran or his attorney or other relevant party an earlier request for an application for that benefit. There was no such earlier communication which could be interpreted as expressing a desire to claim service connection, or a belief in entitlement to VA disability compensation, for DMII. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to October 25, 2013 for the grant of service connection for DMII have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1965 to January 1969. This appeal stems from a Veterans Affairs Regional Office (VARO) rating decision that was issued in September 2014. The record reflects that the Veteran requested a Board of Veterans’ Appeals (Board) hearing on his VA Form 9 (substantive appeal), which was received in January 2018. However, in a December 2020 written statement, the Veteran, through his attorney, cancelled his scheduled hearing. Thus, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e). In December 2020, the Veteran, through his attorney, also requested a withdrawal of the VA Form 9 that was filed in December 2017. The Veteran further explained that the withdrawal pertains only to the issue of entitlement to a TDIU, which was granted in a November 2018 rating decision. The Veteran was also granted service connection for bilateral lower extremity peripheral neuropathy in that November 2018 rating decision. As such, the only issues remaining on appeal are those for service connection for glaucoma, an increased rating for DMII, and an earlier effective date for the grant of service connection for DMII. Earlier Effective Date Grant of Service Connection for DMII The VARO assigned an effective date of October 25, 2013 for the grant of service connection for DMII. The Veteran contends, in effect, that he should be awarded an earlier effective date for the award of service connection for DMII based on the evidence presented. In general, when a claim for service connection is received more than a year after discharge from service, as in this case, the effective date for a grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400 (b)(2)(i). An exception to this general rule is not presented in this case. The Veteran’s claim for service connection for DMII was received on October 25, 2013, which is more than 44 years after his service discharge in January 1969. Review of the record does not reveal that the Veteran submitted a request, or an application, for such benefit earlier than October 25, 2013, and no prior contact or submission was received which may be interpreted as such a request for an application. There was no such earlier communication which could be interpreted as expressing a desire to claim service connection for DMII or a belief in entitlement to VA disability compensation for DMII. 38 C.F.R. § 3.155. Accordingly, an earlier effective date for service connection for DMII is not warranted. Moreover, although the Veteran may have been diagnosed with DMII prior to October 25, 2013, between the date the claim was received (October 25, 2013) and any prior date entitlement may have arisen, it is the latter date, October 25, 2013, that is the proper effective date to be assigned. In sum, there is no legal basis for assignment of an earlier effective date, and, because the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that entitlement to an effective date prior to October 25, 2013 for the award of service connection for DMII is not warranted. 38 U.S.C. § 5107(b). As the preponderance of the evidence is against the Veteran’s claim for an earlier effective date for the grant of service connection for DMII, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107. REASONS FOR REMAND An initial disability rating in excess of 20 percent for service-connected DMII The Veteran contends that he is entitled to a rating in excess of 20 percent for his DMII, indicating that this disability had increased in severity. As the Veteran was last examined for his DMII in August 2014, over six years ago, a remand is necessary for him to undergo another VA examination to assess the current severity of his DMII. Service connection for glaucoma, as secondary to the service-connected DMII The Veteran contends that his glaucoma was caused by his service-connected DMII. VA treatment records show a current diagnosis of glaucoma. The Veteran has not been accorded a VA examination to determine the etiology of his glaucoma. On the August 2014 VA examination report for DMII, the examiner merely stated that eye conditions are secondary to a stroke. No further details were provided. Specifically, no supporting rationale or evidence was provided for the examiner’s conclusion that eye conditions are secondary to a stroke. Further, in August 2015, the Veteran’s attorney submitted arguments in support of the Veteran’s claim for glaucoma, stating that a VA neurologist assessed the Veteran with “diabetic related ischemic optic neuropathy on the left” in October 2014. She argues that this assessment suggests that the Veteran’s glaucoma was caused by his DMII. Thus, it is necessary to obtain a VA medical opinion to determine the etiology of the Veteran’s glaucoma. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate VA clinician to determine the current severity of his service-connected diabetes mellitus, type II. The Veteran’s claims folder should be made available to the examiner in conjunction with this examination. The examiner should provide a full description of this disability and report all signs and symptoms necessary to evaluate the Veteran’s diabetes mellitus, type II under the respective rating criteria. 2. Also, schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of his glaucoma. The Veteran’s claims folder should be made available to the examiner in conjunction with this examination. After examining the Veteran and completely reviewing his claims file, the examiner is asked to: Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed glaucoma is proximately due to, caused by, or aggravated (made worse) by, his service-connected diabetes mellitus, type II. A rationale must be provided for all opinions expressed. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.