Citation Nr: 21029552 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-17 182 DATE: May 13, 2021 ORDER An effective date of August 11, 2010 for the award of service connection for diabetes is granted. An effective date of August 8, 2018 for the award of service connection for peripheral neuropathy of the left lower extremity is granted. An effective date of August 8, 2018 for the award of service connection for peripheral neuropathy of the right lower extremity is granted. REMANDED Entitlement to a rating in excess of 20 percent for diabetes before August 8, 2018, and to a rating in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating on the basis of individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to September 21, 2018 for the award of special monthly compensation (SMC) based on housebound status is remanded. Entitlement to an effective date prior to April 30, 2018 for the award of Dependents' Educational Assistance (DEA) benefits is remanded. FINDINGS OF FACT 1. VA received an informal claim from the Veteran for service connection for diabetes on August 11, 2010 but did not provide a formal application form as required by 38 C.F.R. § 3.155. 2. The earliest date on which it is factually ascertainable that the Veteran's symptoms of peripheral neuropathy of the lower extremities were of a severity associated with a compensable evaluation is August 8, 2018. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 11, 2010, but no earlier, for the award of service connection for diabetes are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The criteria for an effective date of August 8, 2018, but no earlier, for the award of service connection for peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.119, Diagnostic Code 7913, Note 1. 3. The criteria for an effective date of August 8, 2018, but no earlier, for the award of service connection for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.119, Diagnostic Code 7913, Note 1. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Agency of Original (AOJ). A January 2013 rating decision granted service connection for diabetes and assigned a 20 percent rating effective July 30, 2012. A December 2018 rating decision granted service connection for peripheral neuropathy of the lower extremities and assigned 20 percent ratings effective September 21, 2018. The December 2018 rating decision found the issue of entitlement to a TDIU to be moot, granted SMC at the housebound rate effective September 21, 2018, and granted DEA effective April 30, 2018. A March 2019 rating decision increased the rating of diabetes to 40 percent effective August 8, 2018. The Veteran requested the opportunity to participate in a hearing before the Board, but in December 2020, the Veteran withdrew his request for such a hearing. Earlier Effective Dates The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999); Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). Thus, a claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee, 459 F.3d at 1326-27 (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection). Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id.; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff'd 541 F.3d 1364 (Fed. Cir. 2008). Under 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015), 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, 229 (2012). 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. See, e.g., Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). Earlier Effective Date for Service Connection for Diabetes The Veteran contends that he is entitled to an effective date of August 2010 for the award of service connection for diabetes. On June 28, 2010, the Veteran filed a claim for service connection for liver cancer. On August 11, 2010, VA received a communication from the Veteran stating that he had diabetes "in addition" and wished for VA to "schedule any needed exams to adjudicate [his] claim." This communication was accompanied by an August 2010 cover letter from the Veteran's representative that did not include a claim for service connection for diabetes. In August 2010, the AOJ notified the Veteran that it had received his August 11, 2010 communication and asked the Veteran to clarify whether he wished to claim service connection for diabetes. The Veteran did not respond to this letter. Pursuant to a July 30, 2012, telephone call with the Veteran, the AOJ confirmed the Veteran's wish to file a claim for service connection for diabetes. A January 2013 rating decision granted service connection for diabetes with an effective date of July 30, 2012. In February 2013, the Veteran argued that he was entitled to an August 2010 effective date for the award of service connection for diabetes. Turning to an analysis of this evidence, the Board will first determine the date of the Veteran's claim for service connection for diabetes. Affording the Veteran with the benefit of the doubt, the Board finds that the Veteran's August 11, 2010, communication indeed constituted an informal claim for service connection for diabetes. The Veteran identified diabetes as a disability that he suffered "in addition" to the liver cancer for which he had already formally claimed service connection, and he requested that VA adjudicate such claim. While the accompanying cover letter did not include a claim for service connection for diabetes, the Board finds this omission to be irrelevant because the Veteran's August 11, 2010 communication itself sufficiently demonstrated the Veteran's intent to seek service connection for diabetes. The record reflects that in response to that informal claim, the AOJ inquired in an August 2010 letter whether the Veteran intended to claim service connection for diabetes. However, the record does not reflect that the RO provided the Veteran with a formal claim form, thus the one-year time limit to return the formal claim form did not begin. Having established the date of claim as August 11, 2010, the appropriate effective date for the award of service connection is the later of the date of receipt of claim or the date entitlement to benefits arose. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). A private clinician first assessed the Veteran with post-transplant diabetes in February 2009. Affording the Veteran with the benefit of the doubt, and with clinicians diagnosing the Veteran with diabetes before his August 11, 2010, date of claim, the Board finds that the Veteran's entitlement to service connection for diabetes arose before his August 11, 2010, date of claim. Thus, August 11, 2010, the later of the Veteran's date of claim and the date when his entitlement to benefits arose, is the proper date for the award of service connection for diabetes. Earlier Effective Date for Service Connection for Peripheral Neuropathy The Veteran contends he is entitled to an effective date prior to September 21, 2018 for his separately rated right and left lower extremity diabetic peripheral neuropathy. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria to support a 100 percent evaluation. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). As a compensable complication of diabetes, the Veteran's claims for service connection for peripheral neuropathy of the lower extremities were a part of his underlying claim for an increased rating for diabetes. As noted above, the Board considers the Veteran's date of claim for diabetes to be August 11, 2010. The Veteran's date of claim for diabetic complications, including peripheral neuropathy, is thus also August 11, 2010. With an August 11, 2010, date of claim established, determining the appropriate effective date for the ratings of the Veteran's neuropathy depends on the date when it was factually ascertainable that the disability reached a compensable level. 38 C.F.R. § 3.400(o). In this case, it is not factually ascertainable that the Veteran was diagnosed with peripheral neuropathy, or experienced symptoms of peripheral neuropathy, until August 2018. Before that time, clinicians generally observed the Veteran not to have any such symptoms. For example, in March 2017, the Veteran denied experiencing tingling, numbness, or weakness. In April 2018, a clinician noted that motor function in all of the Veteran's extremities was intact, with no numbness, tingling, or loss of sensation. In July 2018, a clinician found the Veteran to be neurologically intact. The Veteran was first diagnosed with diabetic polyneuropathy on August 8, 2018, when a clinician noted the Veteran's complaints of chronic numbness and tingling in the toes, forefeet, and heels. In November 2018, a VA examiner confirmed that the Veteran had been so diagnosed in August 2018. Thus, upon a review of the record, the Board finds that August 8, 2018, is the first date that it was factually ascertainable that the Veteran's peripheral neuropathy arose to a compensable degree. The Veteran has argued, for example in January 2021, that he is entitled to service connection for peripheral neuropathy "since at least 2012", because he experienced numbness and tingling "all the time". Such statements are inconsistent with the medical evidence of record, which include the Veteran's own statements, that showed no complaints of such symptoms or treatment for such symptoms before August 2018. An effective date earlier than August 8, 2018, for service connection for peripheral neuropathy is therefore unwarranted based on such statements alone. Accordingly, the proper effective date for the award of a separate evaluation for the Veteran's peripheral neuropathy of the lower extremities is August 8, 2018, which is the first time that the evidence arguably showed a compensable impairment of the lower extremity peripheral nerves. The Board finds that a preponderance of the evidence is against an effective date prior to August 8, 2018. REASONS FOR REMAND Increased Ratings for Diabetes and Peripheral Neuropathy Having assigned an effective date of August 11, 2010, for the award of service connection for diabetes, and an effective date of August 8, 2018, for the award of service connection for peripheral neuropathy, the Board remands the issue of entitlement to increased initial ratings for these disabilities to the AOJ for consideration in the first instance. An additional examination addressing the current severity of the Veteran's diabetes and associated complications is warranted, because the evidence suggests that the Veteran's disability has worsened since his most recent, November 2018, examination. For example, in February 2019, a clinician noted that the Veteran then required three injections of insulin a day. Similarly, in March 2019, a clinician noted that the Veteran's hemoglobin A1C test had worsened to 7.9%. As such, the Veteran should be afforded with a new VA examination to address the current severity of his diabetes and all associated complications. Entitlement to TDIU A December 2018 decision of the AOJ granted the Veteran a 100 percent schedular rating effective April 30, 2018. As such, the AOJ declined to adjudicate the claim for a TDIU, finding the claim to be moot because the Veteran was already in receipt of a 100 percent schedular rating as of September 21, 2018 when he filed his VA Form 21-8940, application for TDIU. However, the Board has found that August 11, 2010 is the proper effective date for the award of service connection for diabetes. The issue of TDIU may be considered part of the Veteran's underlying August 2010 claim for service connection for diabetes and subsequent appeal of the initial rating assigned. See Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, the AOJ must determine whether entitlement to TDIU is warranted prior to April 30, 2018, particularly since August 11, 2010. The Board notes that the Veteran filed a VA Form 21-8940, application for TDIU, in April 2011, reporting he became too disabled to work in December 2009. On remand, the AOJ should develop the claim for a TDIU by obtaining an opinion addressing the impact of the Veteran's service-connected disabilities on his employability since his August 11, 2010 award of service connection for diabetes, and should then adjudicate the issue of whether the Veteran's service-connected disabilities render him unemployable. Earlier Effective Date for SMC Based on Housebound Status SMC is payable at the housebound rate when a Veteran has a single service connected disability rated at 100 percent and (1) has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU based on a single service-connected disability may itself serve as the "single service connected disability rated at 100 percent" element of section 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The determination of whether an effective date earlier than September 21, 2018, for the award of an SMC based on housebound status is inextricably intertwined with the remanded claims for increased ratings and a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the AOJ, after completing the above development relating to the claims for increased ratings and a TDIU, should determine whether an effective date earlier than September 21, 2018, is warranted for the award of an SMC based on housebound status. Earlier Effective Date for DEA Benefits The determination of whether an effective date earlier than April 30, 2018, for the award of DEA benefits inextricably intertwined with the remanded claims for increased ratings and a TDIU. See Harris, 1 Vet. App. 180. Therefore, the AOJ, after completing the above development relating to the claims for increased ratings and a TDIU, should determine whether an effective date earlier than April 30, 2018, is warranted for the award of DEA benefits. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to address the current nature and severity of his diabetes, peripheral neuropathy, and all other associated diabetic complications. 2. Obtain an opinion from an examiner of appropriate expertise that discusses the functional limitations caused by each of the Veteran's service-connected disabilities, including their effect on his ability to function in an occupational environment, from 2010 to 2018. A physical examination of the Veteran is required only to the extent that the examiner determines that it is necessary is required in order to offer the requested opinion. Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.