Citation Nr: 21026331 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 20-30 419 DATE: April 30, 2021 ORDER Entitlement to an effective date of October 31, 2012, but no earlier, for the grant of service connection for right upper extremity diabetic peripheral neuropathy is granted. Entitlement to an effective date of October 31, 2012, but no earlier, for the grant of service connection for left upper extremity diabetic peripheral neuropathy is granted. Entitlement to an effective date October 31, 2012, but no earlier, for the grant of service connection for right lower extremity diabetic peripheral neuropathy is granted. Entitlement to an effective date of October 31, 2012, but no earlier, for the grant of service connection for left lower extremity diabetic peripheral neuropathy is granted. REMANDED Entitlement to an initial evaluation in excess of 10 percent for right upper extremity peripheral neuropathy prior to December 7, 2017 and in excess of 20 percent thereafter is remanded. Entitlement to an initial evaluation in excess of 10 percent for left upper extremity peripheral neuropathy prior to December 7, 2017 and in excess of 20 percent thereafter is remanded. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity peripheral neuropathy prior to December 7, 2017 and in excess of 20 percent thereafter is remanded. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity peripheral neuropathy prior to December 7, 2017 and in excess of 20 percent thereafter is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to December 7, 2017 is remanded. FINDINGS OF FACT 1. In October 2012, the Veteran filed an original claim for service connection for peripheral neuropathy. In a March 2013 rating decision, service connection for right upper, left upper, right lower, and left lower extremity peripheral neuropathy was denied. The Veteran was furnished notice of that determination and of his appellate rights in March 2013. 2. The Veteran submitted new and material evidence within one year of the March 2013 rating decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 31, 2012, but no earlier, for the grant of service connection for right upper extremity diabetic peripheral neuropathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of October 31, 2012, but no earlier, for the grant of service connection for left upper extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than July 12, 2016 for the grant of service connection for right lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than July 12, 2016 for the grant of service connection for left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to July 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from May 2017 and November 2019 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 Decision Review Officer decision, the RO granted an increased rating to 20 percent for the Veteran’s diabetic peripheral neuropathy of the right upper, left upper, right lower, and left lower extremities effective December 7, 2017. However, as the increase did not constitute a full grant of the benefits sought, the Veteran’s claims for increased ratings remain in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Effective Date Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Where new and material evidence is received within one year of the date of a decision issued by the Agency of Original Jurisdiction (AOJ) or prior to the issuance of an appellate decision, the effective date of an award will be determined as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1); see also 38 C.F.R. § 3.156(b). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. New and material evidence received prior to the expiration of the appeal period (one year from the date a claimant is notified of a decision) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 501; 38 C.F.R. § 3.156(b). The effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). By way of history, the record reflects that the Veteran first filed a claim of entitlement to service connection for service connection for peripheral neuropathy on October 31, 2012. The RO denied the Veteran’s claim in a March 2013 rating decision, on the basis that there was no diagnosis. The Veteran filed a notice of disagreement in April 2013 but did not appeal the denial of service connection for right upper, left upper, right lower, and left lower extremity peripheral neuropathy. In August 2013, the Veteran submitted a May 2013 treatment record from McLaren Bay Heart and Vascular, which noted that the Veteran had peripheral neuropathy and included an impression of diabetic neuropathy. The Board finds this evidence both new and material to the claim he filed on October 31, 2012. 38 C.F.R. § 3.156(b). Subsequently, in July 12, 2016, the RO received an intent to file a claim for compensation. In December 2016 the Veteran filed a formal claim for upper and lower extremity neuropathy secondary to diabetes mellitus. In a May 2017 rating decision, the RO granted service connection for right upper, left upper, right lower, and left lower extremity peripheral neuropathy and an evaluation of 10 percent was assigned for each extremity effective July 12, 2016, the date VA received the Veteran’s intent to file a claim. The Board finds that the March 2013 rating decision was non-final for VA purposes as new and material evidence was associated with the claims file within one year of that decision. Thus, the Board finds that the Veteran has pursued claims of service connection for right upper, left upper, right lower, and left lower extremity peripheral neuropathy since he filed his original claim on October 31, 2012. Pursuant to VA regulations as referenced above, the appropriate effective date is the date of the claim or the date that entitlement arose, whichever is the later. In this case, the May 2013 private treatment record indicates a history of diabetic neuropathy, and the date of the Veteran’s claim is October 31, 2012. Although the medical files do not indicate when the Veteran’s neuropathy began, the Veteran reported a history since 2006 when he filed the claim. Accordingly, October 31, 2012 is the later date and the Board finds that the criteria for an earlier effective date of October 31, 2012, for the grant of service connection for right upper, left upper, right lower, and left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). REASONS FOR REMAND Increased Rating for Right Upper Extremity, Left Upper Extremity, Right Lower Extremity, and Left Lower Extremity Diabetic Peripheral Neuropathy Regarding the increased rating claims on appeal, the record reflects that the Veteran last underwent a VA examination in March 2018, where he complained of intermittent numbness, sharp pain, tingling, and a pins and needles feeling. It caused him to not be able to stand, walk, or do activity for an extended period of time. Although the September 2020 Decision Review Officer Decision awarded an increased 20 percent rating effective December 7, 2017, VA treatment records from October 2018 indicate that the Veteran tried something for his neuropathy in his feet but it did not make him feel good, March 2019 records note the Veteran’s concern with pain in the neck radiating down to his arms, and weakness in the arms and hands, and July 2020 records indicate that the Veteran was having a difficult time walking. Although these records do not specifically state that these symptoms are due only to the Veteran’s service-connected peripheral neuropathy, it is not clear as to the current severity of the Veteran’s service-connected peripheral neuropathy since March 2018. As there is a possibility of a change in the Veteran’s condition and insufficient findings to permit the Board to adequately rate the disabilities, a new, contemporaneous VA examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (finding that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Also, updated VA treatment records should be obtained. The Veteran should also be afforded the opportunity to identify and/or provide any additional evidence in support of his claims. TDIU prior to December 7, 2017 In this case, the Veteran’s claim for entitlement to TDIU prior to December 7, 2017 is inextricably intertwined with the increased rating claims for Veteran’s service-connected peripheral neuropathy disabilities. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board notes that a grant of increased ratings could affect the Veteran’s eligibility for entitlement to a TDIU. Therefore, this issue cannot be adjudicated at this time and is deferred pending completion of the development ordered on remand. The matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 2. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right upper extremity diabetic peripheral neuropathy, left upper extremity diabetic peripheral neuropathy, right lower extremity diabetic peripheral neuropathy, and left lower extremity peripheral neuropathy. The electronic claims file must be made available to the examiner for review in conjunction with the examination. (Continued on the next page)   All pertinent symptomatology and findings must be reported in detail. The examiner should provide a full description of the specific disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. P. Saindon Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.