Citation Nr: 21023122 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-16 615 DATE: April 20, 2021 ORDER Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for diabetes mellitus type II with erectile dysfunction, hypertension, and retinopathy, is granted. Entitlement to an earlier effective date of Apri 3, 2014, for the award of service connection for diabetic nephropathy is granted. Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy, right upper extremity, is granted. Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy, left upper extremity, is granted. Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy of the left lower extremity is granted. Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to an earlier effective date of April 3, 2014, for peripheral vascular disease of the right lower extremity is granted. Entitlement to an earlier effective date of April 3, 2014, for the award of service connection for peripheral vascular disease of the left lower extremity is granted. REMANDED Entitlement to an effective date earlier than May 19, 2014, for special monthly compensation (SMC) based on loss of use of creative organ is remanded. Entitlement to an effective date earlier than May 19, 2014, for eligibility for Dependents’ Educational Assistance is remanded. FINDINGS OF FACT 1. A September 2002 rating decision denied service connection for diabetes mellitus type II. The Veteran did not file a notice of disagreement, and new and material evidence was not received within one year of notification of the September 2002 rating decision. 2. In September 2010, VA received medical evidence concerning multiple ailments, including diabetes mellitus type II. In connection with that evidence, the Veteran’s representative noted the request for a claim for aid and attendance, and the Veteran also requested pension. 3. On April 3, 2014, VA received an informal claim from the Veteran for service connection for diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for diabetes mellitus type II with erectile dysfunction, hypertension, and retinopathy, have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an earlier effective date of Apri 3, 2014, for the award of service connection for diabetic nephropathy have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy, right upper extremity, have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy, left upper extremity, have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 7. The criteria for an earlier effective date of April 3, 2014, for peripheral vascular disease of the right lower extremity have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. 8. The criteria for an earlier effective date of April 3, 2014, for the award of service connection for peripheral vascular disease of the left lower extremity have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1972 to January 1980. The Veteran died in June 2020, and the appellant is the Veteran’s surviving spouse. She has been recognized by the Regional Office (RO) as the properly substituted appellant in this case. These matters come before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision of the Department of Veterans Affairs (VA) RO. In October 2019, the Veteran testified at a local hearing with a Decision Review Officer. A transcript of the hearing is associated with the record. Effective Dates Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, VA accepted both formal and informal claims for benefits. See Norris v. West, 12 Vet. App. 413, 416 (1999). An informal claim was defined as “[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA].” 38 C.F.R. § 3.155 (2014); see 38 C.F.R. § 3.160(a) (2014) (referring to § 3.155 for the definition of informal claims). Under the pre-amendment system, when VA received an informal claim and a formal claim had not yet been filed, VA sent the claimant a formal application for benefits; if that application was received within one year, it was considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014). 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. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA’s receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). First, as to the claim for an earlier effective date for the award of service connection for diabetes mellitus type II with erectile dysfunction, hypertension, and retinopathy, the Veteran first filed an informal claim for service connection in December 2001. A September 2002 rating decision denied service connection for diabetes mellitus type II. The Veteran was advised of the decision by an October 2002 letter. The Veteran did not file a timely notice of disagreement as to that decision and new and material evidence was not received within the one-year period from notification of the September 2002 rating decision. The September 2002 rating decision is final. 38 C.F.R. § 19.52. In September 2010, VA received medical evidence concerning multiple ailments including diabetes mellitus type II. In conjunction with that evidence, the Veteran’s representative requested aid and attendance. In December 2010, the Veteran submitted a written statement noting his request for VA pension with aid and attendance. The Veteran also filed an application for benefits in December 2010 and requested pension, noting that his hearing loss and blindness prevented him from working. A February 2011 rating decision then granted special monthly pension based on the need for aid and attendance of another person. On April 3, 2014, VA received correspondence from the Veteran entitled “Notice of Disagreement,” wherein the Veteran requested service connection for diabetes mellitus type II and also submitted a medical article in connection with that claim, noting that service connection was warranted due to symptoms of pre-diabetes during active service. An April 2014 notice letter to the Veteran advised him that his notice of disagreement was not accepted concerning the claim of service connection for diabetes mellitus type II. The letter enclosed a VA Form 21-4138. On August 13, 2014, VA received correspondence from the Veteran entitled “Notice of Disagreement,” wherein he again requested service connection for diabetes mellitus type II. An August 2014 notice letter to the Veteran advised him that his notice of disagreement was not accepted concerning the claim of service connection for diabetes mellitus type II. The letter enclosed a VA Form 21-4138. On April 7, 2015, VA received a medical opinion in support of the claim for service connection for diabetes mellitus type II. The private nurse practitioner determined that the Veteran’s diabetes mellitus type II was directly related to service, noting symptoms experienced during service. A formal application for benefits, VA Form 21-526EZ, was received by VA on May 19, 2015, and the Veteran requested service connection for diabetes mellitus type II. A July 2015 rating decision denied service connection for diabetes mellitus type II, noting that the Veteran’s informal claim was received by VA on April 3, 2014, and that a fully developed claim was received on May 19, 2015. Subsequently, a November 2015 rating decision granted service connection for diabetes mellitus type II with erectile dysfunction, hypertension, and retinopathy; diabetic nephropathy; peripheral neuropathy, left upper extremity; peripheral neuropathy, right upper extremity; peripheral neuropathy, left lower extremity; peripheral neuropathy, right lower extremity; peripheral vascular disease, left lower extremity; and peripheral vascular disease, right lower extremity. An effective date of May 19, 2014, was assigned for the awards of service connection. The RO explained that the Veteran’s fully developed claim was received on May 19, 2015. Concerning the claim for an earlier effective date for the award of service connection for diabetes mellitus type II, the Board notes that the Veteran first filed a claim for service connection for diabetes mellitus type II in December 2001. However, as explained above, the September 2002 rating decision denied that claim, and that rating decision is final. Accordingly, an effective date is not warranted on the basis of that original claim. The Veteran also argued that he was entitled to an earlier effective date of September 14, 2010. He contended that the case of DeLisio v. Shinseki, 25 Vet. App. 45 (2011) supported his argument because the medical evidence submitted in September 2010 showed that he had diabetes mellitus and that the claim submitted at that time should have been construed as a claim for service connection. In DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) the U.S. Court of Appeals for Veterans Claims (Court) held that upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing. Specifically, the DeLisio court rejected the notion that a claimant must file a claim explicitly for benefits for the causal disease or disability to establish entitlement to secondary service connection for the claimed condition. However, the Board finds that DeLisio is not applicable to the instant case. Here, the coversheet submitted with the medical evidence in September 2010 noted a request for aid and attendance. Later, the Veteran also requested pension and completed a formal application for benefits requesting pension. That requested benefit was subsequently granted by the RO. Because the Veteran specifically requested aid and attendance and pension, his 2010 claim, even sympathetically read, is not reasonably construed as a claim for service connection for diabetes mellitus type II and cannot serve as the basis for an earlier effective date. In addition, concerning the receipt of medical evidence noting the presence of diabetes mellitus type II, the Board notes that the United Stated Court of Appeals for the Federal Circuit (Federal Circuit) found that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). See also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Rather, the Federal Circuit found that “a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.” MacPhee, 459 F.3d at 1327. Accordingly, merely seeking treatment for a disability does not establish an informal claim for service connection, and the receipt of medical evidence documenting the presence of diabetes mellitus type II is not considered a claim for service connection in this case. Next, the Veteran submitted correspondence received by VA on April 3, 2014, requesting service connection for diabetes mellitus. Though the correspondence was entitled “Notice of Disagreement,” the Veteran requested service connection for diabetes mellitus type II and submitted evidence in support of that request. Sympathetically read, the Board construes that correspondence as an informal claim for benefits. Though the Veteran was sent notice letters in April and August 2014, he was not provided a formal claim for benefits. He subsequently submitted a formal claim for benefits in May 2015. As discussed above, the former 38 C.F.R. § 3.155 states that an application form should be forwarded to a claimant for execution of a formal claim upon receipt of an informal claim, and if a formal claim is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Here, the Veteran’s formal application was not received until May 2015, more than a year after his informal claim was received. However, because the Veteran was not provided a formal application by VA for completion concerning this informal claim, the Board finds that he preserved the effective date of the informal claim that was received by VA on April 3, 2014. Accordingly, an earlier effective date of April 3, 2014, the date that VA received his informal claim, is warranted for the award of service connection for diabetes mellitus type II. See Quarles, 3 Vet. App. 129. An earlier effective date is not warranted on any other basis. Concerning earlier effective dates for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816. In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. §§ 3.816 (b)(1)(i). The Nehmer regulations provide for situations where the effective date can be earlier than the date of the liberalizing law, assuming a Nehmer class member has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, unless a claim was filed within one year of service discharge. 38 C.F.R. § 3.816(c)(1), (c)(2), (c)(3). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4). Here, the Veteran did not serve in the Republic of Vietnam. He only claimed service connection on a direct basis, alleging that he had symptoms of pre-diabetes during active service. His service personnel records do not reflect any service in the Republic of Vietnam and, instead, show overseas service in Germany. Accordingly, the provisions of 38 C.F.R. § 3.816 do not apply in the instant case. Likewise, the provisions of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114—allowing for earlier effective dates in certain circumstances where benefits are granted pursuant to a liberalizing law or regulation—are not for application. Though the RO inaccurately indicated that the Veteran’s claim was granted as the result of exposure to herbicides and applied 38 C.F.R. § 3.114 to assign an effective date of May 19, 2014, a year prior to the date that the Veteran’s formal application for benefits was received, the Board again notes that the Veteran did not serve in Vietnam and never asserted exposure to herbicides as a basis for service connection for diabetes. Instead, the Veteran claimed direct service connection and submitted a positive medical opinion concerning direct service connection. Insofar as VA regulations—specifically 38 C.F.R. § 3.309(e)—were liberalized through 66 Fed. Reg. 23,166, 23,168 (May 8, 2001), by including type II diabetes mellitus as a disease presumed to have resulted from exposure to certain herbicide agents, including Agent Orange, for service connection purposes, again, the RO incorrectly described the Veteran’s type II diabetes mellitus as being Agent Orange related in the November 2015 rating decision granting service connection. However, again, the evidence—notably, a March 2015 private opinion and September 2015 VA opinion supporting the Veteran’s service connection claim for type II diabetes, as well as all of the Veteran’s own contentions put forth in support of his claim—reflects that type II diabetes mellitus was directly related to service, as its symptoms had their onset in service. The Veteran at no point asserted—and no evidence of record has ever shown—that he was exposed to Agent Orange or any such herbicide agent in service. Moreover, again, the Veteran’s original claim for service connection was filed in December 2001—after 38 C.F.R. § 3.309(e) was amended to include diabetes mellitus—and the final denial of that claim was issued in October 2002. See Brown v. Nicholson, 21 Vet. App. 290, 296 (holding that where there is no change in law following a final decision, section 5110(g) cannot apply, because an award has not been made “pursuant to” an act or administrative issue). Therefore, an earlier effective date is not warranted based on the provisions of 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. Accordingly, an effective date of April 3, 2014, but no earlier, for the grant of service connection for diabetes mellitus type II is warranted. Turning to the claims for earlier effective dates as to the awards of service connection for diabetic nephropathy; peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy of the left lower extremity; peripheral neuropathy of the right lower extremity; peripheral vascular disease of the right lower extremity; and peripheral vascular disease of the left lower extremity, earlier effective dates of April 3, 2014, and no earlier, are warranted. The RO granted service connection for these disabilities as manifestations of the Veteran’s diabetes mellitus type II, pursuant to his service connection claim for diabetes—which, as discussed above, was received on April 3, 2014. The evidence of record does not reflect any claim concerning diabetic nephropathy; peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy of the left lower extremity; peripheral neuropathy of the right lower extremity; peripheral vascular disease of the right lower extremity; or peripheral vascular disease of the left lower extremity prior to April 3, 2014. Therefore, effective dates for awards of service connection of April 3, 2014, are warranted, but a preponderance of the evidence is against the award of any earlier effective dates. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND In light of the earlier effective dates for the awards of service connection herein granted, the agency of original jurisdiction should adjudicate in the first instance any downstream matter of earlier resulting compensation awards, including the matters of entitlement to an effective date earlier than May 19, 2014, for SMC based on loss of use of creative organ and eligibility for Dependents’ Educational Assistance. The matters are thus REMANDED for the following action: Readjudicate the matters remaining on appeal in consideration of the earlier effective dates for the awards of service connection herein granted. If any benefit sought remains denied, provide a supplemental statement of the case to the appellant. Andrew Mack Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.