Citation Nr: 21028617 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-17 986 DATE: May 11, 2021 ORDER An effective date of January 15, 2014 for the assignment of a 40 percent increased rating for right lower extremity peripheral neuropathy is granted. An effective date of January 15, 2014 for the assignment of a 40 percent increased rating for left lower extremity peripheral neuropathy is granted. An effective date of January 15, 2014 for the assignment of a 20 percent increased rating for right upper extremity peripheral neuropathy is granted. An effective date of January 15, 2014 for the assignment of a 20 percent increased rating for left upper extremity peripheral neuropathy is granted. An effective date earlier than December 2, 2002 for the grant of service connection for diabetes mellitus type II is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders is granted. FINDINGS OF FACT 1. The Veteran submitted and VA received an intent to file a claim for compensation on January 15, 2014 and VA treatment records dated July 17, 2014 reflected treatment and symptoms of the Veteran's right and left lower extremity peripheral neuropathy. 2. The Veteran submitted and VA received an intent to file a claim for compensation on January 15, 2014; and VA treatment records dated July 17, 2014 reflected treatment and symptoms of the Veteran's right and left upper extremity peripheral neuropathy. 3. The Veteran did not submit and VA did not receive any informal or formal claim prior to December 2, 2002 pertaining to the Veteran's diabetes mellitus type II. 4. With resolution of the doubt in his favor the Veteran's service-connected disorders preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an effective date of January 15, 2014 for the assignment of a 40 percent increased rating for right and left lower extremity peripheral neuropathy have been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(p), (r), 3.400, 5110(a). 2. The criteria to establish an effective date of January 15, 2014 for the assignment of a 20 percent increased rating for right and left upper extremity peripheral neuropathy have been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(p), (r), 3.400, 5110(a). 3. The criteria to establish an effective date prior to December 2, 2002 for the grant of service connection for diabetes mellitus type II have not been met. 38 U.S.C. § 5101(a), 5110; 38 C.F.R. §§ 3.1(p), (r), 3.151(a), 3.155(a), 3.400. 4. The criteria to establish a TDIU due to service-connected disorders have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1967 to April 1969. His military decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated October 2004 and January 2016 of the Detroit, Michigan and Newnan, Georgia Regional Office (RO). In March 2021, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In August 2015 and December 2017, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is in receipt of special monthly compensation under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ from March 30, 2009. Effective Date The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or 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. The effective date of an award of service connection shall be the day following the date of discharge or release if the application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted "date entitlement arose" as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. 38 U.S.C. § 5110(a); See Mcgrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. Mcgrath v. Gober, 14 Vet. App. 28, 35 (2000). When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. Id. The terms "claim" and "application" refer to 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under the law administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, 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. 38 C.F.R. § 3.155(a). The Court has held that an informal claim must be (1) a communication in writing that (2) expresses intent to apply for benefits, and (3) identifies the benefits sought. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Right and left lower extremity peripheral neuropathy The Veteran contends that an effective date of December 2, 2002 is warranted as to the 40 percent increased ratings for his right and left lower extremity peripheral neuropathy. The Veteran's right and left lower extremity peripheral neuropathy is rated 10 percent disabling from December 2, 2003 to January 8, 2009; 30 percent from January 9, 2009 to October 5, 2015 and 40 percent disabling from October 6, 2015 and continuing thereafter. The Board will grant an effective date of January 15, 2014 as to the Veteran's 40 percent increased rating for his right and left lower extremity peripheral neuropathy. The Board will discuss the procedural history to provide insight as to the grant of a January 15, 2014 effective date for the Veteran's 40 percent increased ratings as to his right and left lower extremity peripheral neuropathy. On June 15, 2004, the Veteran submitted a claim of service connection for diabetes mellitus type II. In an October 2004 rating decision, the RO granted service connection for diabetes mellitus type II and its complications, to include right and left lower extremity peripheral neuropathy and assigned 10 percent ratings effective June 15, 2004. On November 9, 2004, VA received a notice of disagreement (NOD) as to the effective date for right and left lower extremity peripheral neuropathy. In March 2005, VA issued a statement of the case (SOC). In April 2005, VA received a substantive appeal with a request for a Board hearing. In December 2005, VA issued a supplemental statement of the case (SSOC). In an April 2006 rating decision with a notification date of May 2006, the RO granted an earlier effective date of December 2, 2003 for right and left lower extremity peripheral neuropathy. On November 3, 2006, VA received a statement from the Veteran that he was "satisfied with the effective date of December 2, 2003 dated April 11, 2006 and does not wish to pursue the appeal any further and is withdrawing the appeal." The Veteran also requested to "close out the pending appeal and the request for a travel board hearing." The record reflects that the RO took no further action on the claims, including certification of the claims to the Board, and the Veteran expressed no indication that he wished to pursue the claims for an earlier effective date for right and left lower extremity peripheral neuropathy. On January 9, 2009, VA received a claim for an increased rating as to the Veteran's right and left lower extremity peripheral neuropathy. In a November 2009 rating decision with a notification date of December 2009, the RO granted an increased 30 percent rating effective January 9, 2009 for the Veteran's right and left lower extremity peripheral neuropathy. The Veteran did not submit a NOD, and therefore, the decision became final. On January 15, 2014, the Veteran submitted an intent to file a claim for compensation. The record does not reflect the Veteran having submitted a claim or application for an increased rating as to his right and left lower extremity peripheral neuropathy within one year of the January 2014 informal claim. However, VA received VA treatment records on February 19, 2015 reflecting treatment and symptoms of the Veteran's peripheral neuropathy dated as early as July 17, 2014. On October 6, 2015, the Veteran was afforded a VA examination as to his right and left lower extremity peripheral neuropathy. In a January 2016 rating decision, the RO granted an increased 40 percent rating effective October 6, 2015 for the Veteran's right and left lower extremity peripheral neuropathy. The Veteran timely appealed the effective date as to the 40 percent increased ratings. In his March 2021 Board hearing, the Veteran asserted that an earlier effective date of December 2, 2002 was warranted for the 40 percent increased rating as to his right and left lower extremity peripheral neuropathy due to a non-VA medical provider having diagnosed the Veteran with diabetes mellitus type II in December 2002. The Board will grant an effective date of January 15, 2014 for the assignment of a 40 percent increased rating as to his right and left lower extremity peripheral neuropathy based on the benefit-of-the-doubt doctrine. As noted above, the Veteran withdrew and the RO took no further action pertaining to the appeal as to the effective date for the 10 percent initial rating as to his right and left lower extremity peripheral neuropathy and the Veteran did not appeal the effective date as to the 30 percent increased rating for his right and left lower extremity peripheral neuropathy. On January 15, 2014, the Veteran submitted an intent to file a claim for compensation form and VA received VA treatment records on February 19, 2015 reflecting treatment and symptoms of the Veteran's peripheral neuropathy dated as early as July 17, 2014 within one year of the January 2014 informal claim. Although the Veteran did not submit a claim or application within one year of the January 2014 informal claim, under Mcgrath, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers only if the intent to file a claim for an increase was received within one year of the date of medical treatment. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an effective date of January 15, 2014 for the assignment of 40 percent increased ratings for his right and left lower extremity peripheral neuropathy is warranted and the claims are granted. Right and left upper extremity peripheral neuropathy The Veteran contends that an effective date of December 2, 2002 is warranted for the assignment of 20 percent increased ratings for right and left upper extremity peripheral neuropathy. The Veteran's right and left upper extremity peripheral neuropathy is rated 10 percent disabling from March 30, 2007 to October 5, 2015 and 20 percent disabling from October 6, 2015 and continuing thereafter. The Board will grant an effective date of January 15, 2014 as to the Veteran's 20 percent increased rating for his right and left upper extremity peripheral neuropathy. On March 30, 2007, the Veteran submitted and VA received a claim of service connection for right and left upper extremity peripheral neuropathy. In an August 2007 rating decision, the RO granted a 10 percent initial rating effective March 30, 2007 for the Veteran's right and left upper extremity peripheral neuropathy. The Veteran did not appeal, and therefore, the decision became final. On January 9, 2009, VA received a claim for an increased rating as to the Veteran's right and left upper extremity peripheral neuropathy. In a November 2009 rating decision with a notification date of December 2009, the RO denied the Veteran's increased rating claim. The Veteran did not appeal, and therefore, the decision became final. On January 15, 2014, the Veteran submitted an intent to file a claim for compensation. The record does not reflect the Veteran having submitted a claim or application for an increased rating as to his right and left upper extremity peripheral neuropathy within one year of the January 2014 informal claim. However, VA received VA treatment records on February 19, 2015 reflecting treatment and symptoms of the Veteran's peripheral neuropathy dated as early as July 17, 2014. On October 6, 2015, the Veteran was afforded a VA examination as to his right and left upper extremity peripheral neuropathy. In a January 2016 rating decision, the RO granted an increased 20 percent rating effective October 6, 2015 for the Veteran's right and left upper extremity peripheral neuropathy. The Veteran timely appealed the effective date as to the 20 percent increased ratings. In his March 2021 Board hearing, the Veteran asserted that an earlier effective date of December 2, 2002 was warranted for the 20 increased rating as to his right and left upper extremity peripheral neuropathy due to a non-VA medical provider having diagnosed the Veteran with diabetes mellitus type II in December 2002. The Board will grant an effective date of January 15, 2014 for the assignment of a 20 percent increased rating as to right and left upper extremity peripheral neuropathy based on the benefit-of-the-doubt doctrine. On January 15, 2014, the Veteran submitted an intent to file a claim for compensation and VA received VA treatment records on February 19, 2015 reflecting treatment and symptoms of the Veteran's peripheral neuropathy dated as early as July 17, 2014 within one year of the January 2014 informal claim. Although the Veteran did not submit a claim or application within one year of the January 2014 informal claim, as noted above, under Mcgrath, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers only if the intent to file a claim for an increase was received within one year of the date of medical treatment. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an effective date of January 15, 2014 for the Veteran's 20 percent increased ratings for his right and left upper extremity peripheral neuropathy is warranted and the claims are granted. Diabetes mellitus type II On June 15, 2004, the Veteran submitted a claim of service connection for diabetes mellitus type II (DM II). In an October 2004 rating decision, the RO granted service connection for DM II and assigned a 20 percent initial rating effective June 15, 2004. On November 9, 2004, VA received a NOD as to the effective date for DM II. In March 2005, VA issued a SOC. In April 2005, VA received a substantive appeal with a request for a Board hearing. In December 2005 and April 2006, VA issued a SSOC. In an April 2006 rating decision with a notification date of May 2006, the RO granted an effective date of December 2, 2003 for the assignment of a 20 percent initial rating. In August 2015, the Board remanded the appeal due to the Veteran's request for a Board hearing in his substantive appeal. In January 2016, VA issued a SSOC. In an October 2016 rating decision, the RO granted an effective date of December 2, 2002 for the assignment of a 20 percent initial rating. In December 2017, the Board remanded the appeal due to the Veteran's request for a Board hearing in his substantive appeal. In October 2019, VA issued a SSOC. Along with his June 2004 claim of service connection for DM II, the Veteran submitted VA treatment records reflecting a diagnosis of DM II on December 2, 2003. The December 2, 2003 DM II diagnosis constituted an informal claim and the June 2004 claim of service connection for DM II was a formal claim submitted within one year of the informal claim. 38 C.F.R. § 3.155. The Veteran was subsequently granted an effective date of December 2, 2002 for the assignment of a 20 percent initial rating under 38 C.F.R. § 3.114(a)(3). The record does not reflect the Veteran having submitted an informal or formal claim earlier than December 2, 2002. A preponderance of the evidence is against the claim. Therefore, an effective date earlier than December 2, 2002 is not warranted and the claim is denied. TDIU TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In August 2015, the Board found that a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) was raised and remanded the claim for development. The Veteran's service-connected disorders include PTSD rated 30 percent disabling from March 24, 2006 to January 14, 2014; 50 percent disabling from January 15, 2014 and continuing thereafter; right lower extremity peripheral neuropathy rated 10 percent disabling from December 2, 2003 to January 8, 2009; 30 percent disabling from January 9, 2009 to January 14, 2014; 40 percent disabling from January 15, 2014 and continuing thereafter; left lower extremity peripheral neuropathy rated 10 percent disabling from December 2, 2003 to January 8, 2009; 30 percent disabling from January 9, 2009 to January 14, 2014; 40 percent disabling from January 15, 2014 and continuing thereafter; diabetes mellitus type II rated 20 percent disabling from December 2, 2002 and continuing thereafter; left upper extremity peripheral neuropathy rated 10 percent disabling from March 30, 2007 to January 14, 2014; 20 percent disabling from January 15, 2014 and continuing thereafter; right upper extremity peripheral neuropathy rated 10 percent disabling from March 30, 2007 to January 14, 2014; 20 percent disabling from January 15, 2014 and continuing thereafter; tinnitus rated 10 percent disabling from June 15, 2004 and continuing thereafter; bilateral hearing loss rated noncompensable from June 15, 2004 and continuing thereafter; and erectile dysfunction rated noncompensable from March 30, 2009 and continuing thereafter. The Veteran has met the schedular criteria under § 4.16(a) as of January 9, 2009. The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. Thus, the central question is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a March 2015 statement, the Veteran reported that in July 2013, the Veteran worked as a car driver and upon returning a customer's vehicle after it was serviced, the Veteran noticed a handgun in the vehicle and experienced a "panic attack" and began looking for his M-16 rifle. The Veteran was unable to find his rifle and feared for his life. The Veteran indicated having experienced a reoccurrence of PTSD symptoms for several months and had to turn down driving assignments. In his March 2015 VA Form 21-8940, Application For Increased Compensation Based on Unemployability, the Veteran reported that his service-connected PTSD impacted his ability to work as of July 15, 2013 and that he last worked full time as of that date. In a September 2015 statement, the Veteran reported having been terminated from his occupation as a car driver as of January 30, 2015 outlined in an August 2015 letter from his then-employer. The Veteran indicated not having any car driving assignments since January 2015 and his employer had not provided any information until the August 2015 letter. Having submitted the letter to VA, the August 2015 letter noted that the Veteran was terminated effective January 30, 2015. In his March 2021 Board hearing, the Veteran testified having last worked full time in 2002 and that his car-driving position for a dealership was a part time position. The Board will grant a TDIU based on the benefit-of-the-doubt doctrine. Although the Veteran testified not having worked full time since 2002, the Veteran reported, in his March 2015 VA Form 21-8940, Application For Increased Compensation Based on Unemployability, not having worked full time since July 15, 2013 due to his PTSD. The August 2015 letter from the Veteran's previous employer indicated that the Veteran was terminated from his occupation as a car driver. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, 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.