Citation Nr: 21012579 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-01 913 DATE: March 4, 2021 ORDER An effective date of October 31, 2013, for service connection for atherosclerotic cardiovascular disease, status post a coronary artery bypass graft, is granted. An effective date of October 31, 2013, for service connection for diabetes mellitus is granted. An effective date of October 31, 2013, for service connection for peripheral neuropathy of the right upper extremity is granted. An effective date of October 31, 2013, for service connection for peripheral neuropathy of the left upper extremity is granted. An effective date of October 31, 2013, for service connection for peripheral neuropathy of the right lower extremity is granted. An effective date of October 31, 2013, for service connection for peripheral neuropathy of the left lower extremity is granted. An effective date of October 31, 2013, for service connection for peripheral vascular disease of the right lower extremity is granted. An effective date of October 31, 2013, for service connection for peripheral vascular disease of the left lower extremity is granted. An effective date of October 31, 2013, for service connection for erectile dysfunction is granted. An effective date of October 31, 2013, for entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for atherosclerotic cardiovascular disease, status post a coronary artery bypass graft, was received on October 31, 2013. 2. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for diabetes mellitus was received on October 31, 2013. 3. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral neuropathy of the right upper extremity was received on October 31, 2013. 4. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral neuropathy of the left upper extremity was received on October 31, 2013. 5. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral neuropathy of the right lower extremity was received on October 31, 2013. 6. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral neuropathy of the left lower extremity was received on October 31, 2013. 7. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral vascular disease of the right lower extremity was received on October 31, 2013. 8. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for peripheral vascular disease of the left lower extremity was received on October 31, 2013. 9. Resolving all reasonable doubt in the Veteran’s favor, a claim for service connection for erectile dysfunction was received on October 31, 2013. 10. Resolving all reasonable doubt in the Veteran’s favor, a claim for entitlement to SMC for the loss of a creative organ was received on October 31, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 31, 2013, for service connection for atherosclerotic cardiovascular disease, status post a coronary artery bypass graft, have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 2. The criteria for an effective date of October 31, 2013, for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 3. The criteria for an effective date of October 31, 2013, for service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 4. The criteria for an effective date of October 31, 2013, for service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 5. The criteria for an effective date of October 31, 2013, for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 6. The criteria for an effective date of October 31, 2013, for service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 7. The criteria for an effective date of October 31, 2013, for service connection for peripheral vascular disease of the right lower extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 8. The criteria for an effective date of October 31, 2013, for service connection for peripheral vascular disease of the left lower extremity have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 9. The criteria for an effective date of October 31, 2013, for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.400. 10. The criteria for an effective date of October 31, 2013, for entitlement to SMC for the loss of a creative organ have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1973, including a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Newark, New Jersey, that granted service connection and a 30 percent rating for atherosclerotic cardiovascular disorder, status post a coronary artery bypass graft, effective October 27, 2014; granted service connection and a 20 percent rating for diabetes mellitus (diabetes mellitus, type 2), effective October 27, 2014; granted service connection and a 20 percent rating for peripheral neuropathy of the right upper extremity, effective October 27, 2014; granted service connection and a 20 percent rating for peripheral neuropathy of the left upper extremity, effective October 27, 2014; granted service connection and a 10 percent rating for peripheral neuropathy of the right lower extremity, effective October 27, 2014; granted service connection and a 10 percent rating for peripheral neuropathy of the left lower extremity, effective October 27, 2014; granted service connection and a 20 percent rating for peripheral vascular disease of the right lower extremity, effective October 27, 2014; granted service connection and a 20 percent rating for peripheral vascular disease of the left lower extremity, effective October 27, 2014; granted service connection and a noncompensable rating for erectile dysfunction, effective October 27, 2014; and granted entitlement to SMC based on loss of use of a creative organ, effective October 27, 2014. The Veteran expressed disagreement with the effective date of the respective grants of service connection and perfected a timely appeal. In an October 2019 decision, the Board denied the Veteran’s claim. He then appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted the parties’ Joint Motion for Remand and vacated the Board’s October 2019 decision. The case is now returned to the Board. In December 2020, the Veteran submitted a request for this matter to be remanded to the agency of original jurisdiction so that he may provide additional evidence in support of his claim. As this decision represents a complete grant of the benefit sought on appeal, the Veteran is not prejudiced by proceeding with adjudication of this matter. Effective Dates Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance. There is a limited exception to the above general rule regarding the assignment of effective dates for original claims for compensation received from August 6, 2013, through August 5, 2015 and filed as a Fully Developed Claim. The exception was created by Section 506 of Public Law (PL) 112-154 (Fully Developed Claim initiative), which amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed, original claims for compensation received from August 6, 2013, through August 5, 2015. See HONORING AMERICA’S VETERANS AND CARING FOR CAMP LEJEUNE FAMILIES ACT OF 2012, 112 P.L. 154, 126 Stat. 1165, 1194 (“This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment”). In the instant case, the exception would not apply as the Veteran specifically indicated in the claim form filed that he did not want his claim considered for rapid processing under the Fully Developed Claim program. 1. Entitlement to an effective date earlier than October 27, 2014, for service connection for atherosclerotic cardiovascular disease, status post a coronary artery bypass graft. 2. Entitlement to an effective date earlier than October 27, 2014 for service connection for diabetes mellitus. 3. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral neuropathy of the right upper extremity. 4. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral neuropathy of the left upper extremity. 5. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral neuropathy of the right lower extremity. 6. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral neuropathy of the left lower extremity. 7. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral vascular disease of the right lower extremity. 8. Entitlement to an effective date earlier than October 27, 2014, for service connection for peripheral vascular disease of the left lower extremity. 9. Entitlement to an effective date earlier than October 27, 2014, for service connection for erectile dysfunction. 10. Entitlement to an effective date earlier than October 27, 2014, for entitlement to SMC based on loss of use of a creative organ. The Veteran contends that service connection for his atherosclerotic heart disease, status post a coronary artery bypass graft; diabetes mellitus; peripheral neuropathy of the right upper extremity; peripheral neuropathy of the left upper extremity; peripheral neuropathy of the right lower extremity; peripheral neuropathy of the left lower extremity; peripheral vascular disease of the right lower extremity; peripheral vascular disease of the left lower extremity; erectile dysfunction; and entitlement to SMC based on loss of use of a creative organ, should all be effective earlier than October 27, 2014. The Veteran maintains that service connection for the above disabilities, as well as entitlement to SMC based on loss of use of a creative organ, should all be effective October 31, 2013. He asserts that he submitted claims for his service-connected disabilities on October 31, 2013. The Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ), shows a date of signature of October 16, 2013. He indicates that he visited his representative on October 31, 2013, and that the forms of representation and the VA Form 21-526EZ were hand-carried to VA offices for processing on that date. He further contends that he provided private medical records in support of his claim in November 2013. Additionally, he maintains that a Congressional Inquiry, which was dated in October 2014, shows a receipt date in November 2013. In this case, the VA Form 21-526EZ that was signed by the Veteran on October 16, 2013, contained no date stamp memorializing the date of receipt by the RO. Correspondence from the Veteran’s representative to the RO dated October 31, 2013, indicates that a VA Form 21-526EZ, along with an Appointment of Veterans Service Organization as Claimant’s Representative (VA Form 21-22), were being submitted for consideration. The VA date stamp on the correspondence contains a date stamp of October 27, 2014. The accompanying documents do not have a date stamp. It is noted that the Veteran’s claims file documents are currently maintained in electronic or computerized format on the Veterans Benefits Management Systems (VBMS) and Caseflow platforms. Documents scanned into these systems include an associated “receipt date” utilized by the scanning vendor to reflect the date the documents were received by VA. While most documents in a paper claims file contain a stamped receipt date, some do not. As a result, some of the documents in VBMS may list a “receipt date” which may not represent the date the documents were received by VA; rather, they might represent when the documents were scanned into VBMS or the best guess as to date received by the individual responsible for scanning. In this instance, the “receipt date” listed on the VA Form 21-22 is November 7, 2013. Additionally, correspondence from the Veteran’s representative dated November 7, 2013, submitting medical evidence in support of the Veteran’s claim, also includes a “receipt date” of November 7, 2013. The Veteran’s October 2013 VA Form 21-526EZ has a “receipt date” of October 27, 2014. An October 22, 2014, email from the office of a member of Congress indicates that the Veteran reported that he had applied for benefits over a year ago, that he sent a doctor’s report to his representative, and that he was always told his file was “downstairs.” It was noted that the Veteran indicated that he had never received a reply. The office of the member of Congress requested if such could be looked into and attached a privacy release from the Veteran. The privacy release was dated October 21, 2014. At that time, the Veteran reported that he claimed VA benefits a year earlier, but that his representative told him to submit notes from his doctor. The Veteran stated that he got letters from his primary care physician and his cardiologist to go with his application. The Veteran indicated that he wanted to know what was happening because he felt that he was in limbo. He stated that for the previous six months, he was informed that his file had been “downstairs,” and no information had been provided to him. On October 28, 2014, the RO responded to the office of the member of Congress and indicated that the inquiry was being given appropriate attention, and that a reply would be forthcoming when all the details surrounding the inquiry had been completed. Oddly, this correspondence has a “receipt date” of November 7, 2013. On February 6, 2015, the RO responded to a subsequent Congressional Inquiry. This correspondence has a “receipt date” of October 27, 2014. In a Statement in Lieu of Formal VA 646 dated in July 2016, the Veteran’s representative asserted that that the switch from a paper to automated paperless system misdated or delayed the Veteran’s claim. It was suggested that the automated system shows a recorded receipt date of October 27, 2014, for the VA Form 21-526EZ; the signature block shows a date of October 16, 2013; the representation form submitted with the claim form shows a receipt date of November 7, 2013; the private medical records show a receipt date of November 7, 2013; the Congressional Inquiry response, dated October 28, 2014, shows a receipt date of November 7, 2013; and the Congressional Inquiry response, dated February 6, 2015, shows a receipt date of October 27, 2014. The Veteran’s representative essentially concluded that there did not appear to be any logic for documents submitted to VA under a single cover letter to show separate “receipt dates" of almost one-year difference. A “presumption of regularity ‘supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S. Ct. 1, 71 L. Ed. 131 (1926)).” Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by “clear evidence” that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed.Cir.2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (holding that an appellant bears burden of demonstrating error on appeal). In this instance, the Board finds that it is clear the public officers at the RO did not properly discharge their official duties. In this regard, several documents that have been alleged to have been submitted on a particular date bear no official RO date stamps memorializing their receipt. Moreover, the “receipt dates" entered by the scanning vendor show disparate dates for the documents that were supposedly submitted under the same cover. Additionally, correspondence sent out by the RO, itself, contains “receipt dates" that pre-date the dates of the actual correspondence by more than one year. As such, it is clear that the RO did not properly discharge its official duty in accepting and processing the Veteran’s claim. As indicated above, the effective date of an award of compensation based on an original claim is to be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Here, the earliest “receipt date” of record is November 7, 2013, confirming that a VA Form 21-22 and accompanying medical records in support of the Veteran’ claim were received on that date. While the Veteran’s claim form does not have a “receipt date” earlier than October 27, 2014, it does not contain a date stamp. The Veteran has asserted that he signed this document on October 16, 2013, and gave it to his representative to be filed on October 31, 2013. The Board has no reason to find that the Veteran and his representative are not credible in reporting the date that his claim was filed. In light of the numerous inconsistencies in identifying the “receipt date” of the various documents, both submitted both by the Veteran and included by the RO, the Board finds that it is not unreasonable to conclude that the October 27, 2014, effective date assigned by the RO is not accurate. As such, resolving all reasonable doubt in the Veteran’s favor, the Board assigns greater probative weight to the evidence presented by the Veteran and concludes that the effective date of service connection for atherosclerotic cardiovascular disease, status post a coronary artery bypass graft; diabetes mellitus; peripheral neuropathy of the left and right upper and lower extremities; peripheral vascular disease of the left and right lower extremities; and erectile dysfunction; and entitlement to SMC based on loss of use of a creative organ, is October 31, 2013. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.