Citation Nr: 21040349 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 20-05 083 DATE: July 3, 2021 ORDER Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy is denied. Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for diabetic nephropathy is denied. Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for erectile dysfunction is denied. Entitlement to an effective date earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II, is denied. Entitlement to an effective date earlier than December 9, 2016 for the award of special monthly compensation (SMC) based on loss of use of a creative organ is denied. REMANDED Entitlement to service connection, to include on a secondary basis, for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection, to include on a secondary basis, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial disability rating in excess of 50 percent for bilateral diabetic retinopathy is remanded. Entitlement to an initial disability rating in excess of 80 percent for diabetic nephropathy is remanded. Entitlement to an initial compensable disability rating for erectile dysfunction is remanded. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed June 1997 rating decision denied the Veteran's claim for service connection for a bilateral eye disability. Following the final rating decision of June 1997, VA did not receive a claim to reopen the Veteran's claim for service connection for a bilateral eye disability until December 9, 2016. The record reflects a diagnosis of bilateral diabetic retinopathy that predates December 9, 2016. 2. The Veteran's claim for service connection for diabetic nephropathy and erectile dysfunction was received by VA on December 9, 2016. The record reflects diagnoses of diabetic nephropathy and erectile dysfunction that predate December 9, 2016. 3. The Veteran's claim for an increased disability rating for his service-connected diabetes mellitus, type II, was received by VA on December 9, 2016. Evidence of an increase in disability arose over one year prior to receipt of the December 9, 2016 claim. 4. The Veteran's eligibility for SMC based on loss of use of a creative organ arose on December 9, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date earlier than December 9, 2016 for the award of service connection for diabetic nephropathy are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for entitlement to an effective date earlier than December 9, 2016 for the award of service connection for erectile dysfunction are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for entitlement to an effective date earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date earlier than December 9, 2016 for the award of SMC based on loss of use of a creative organ are not met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1988 to November 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A September 20, 2020 Board decision denied service connection for peripheral neuropathy of the right lower extremity; service connection for peripheral neuropathy of the left lower extremity; a disability rating in excess of 50 percent for bilateral diabetic retinopathy; a disability rating in excess of 80 percent for diabetic nephropathy; an initial compensable disability rating for erectile dysfunction; a disability rating in excess of 20 percent for diabetes mellitus, type II; an effective date earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy; an effective date earlier than December 9, 2016 for the award of service connection for diabetic nephropathy; an effective date earlier than December 9, 2016 for the award of service connection for erectile dysfunction; an effective date earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II; and an effective date earlier than December 9, 2016 for the award of SMC based on loss of use of a creative organ. In October 2020, the Veteran's attorney filed a Motion to Vacate the Board's September 20, 2020 decision, arguing that the Board did not rule on an August 20, 2020 pending extension request to submit additional evidence in support of the Veteran's claim prior to the issuance of the September 20, 2020 Board decision. Therefore, as the Veteran was denied due process of law, a March 2021 Board decision vacated the September 20, 2020 Board decision that denied the above-mentioned claims. These matters were held in abeyance for 90 days from the March 11, 2021 Order to Vacate to allow the Veteran and his attorney time to submit additional evidence and argument. The Veteran has since associated this additional evidence with his claims file, which is now for consideration before the Board. In his March 2021 Appellate Brief, the Veteran raised the issue of entitlement to a TDIU due to his service-connected disabilities. In support of his claims, he also submitted a December 2020 private medical opinion from Dr. D. S. discussing the Veteran's current disabilities and their affect on the Veteran's employability. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability, as an attempt to obtain an appropriate disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the record raises a question of whether the Veteran is unemployable due to his service-connected disabilities, TDIU is properly before the Board. Earlier Effective Dates 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 effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). 1. Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy 2. Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for diabetic nephropathy 3. Entitlement to an effective date earlier than December 9, 2016 for the award of service connection for erectile dysfunction The Veteran seeks an earlier effective date for the award of service connection for bilateral diabetic retinopathy, diabetic nephropathy, and erectile dysfunction. Based on a review of the relevant evidence of record, the Board finds that entitlement to an effective earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy, diabetic nephropathy, and erectile dysfunction is not warranted. An unappealed June 1997 rating decision denied service connection for a bilateral eye disability, and the rating decision became final. The Veteran's claim to reopen his claim for service connection for a bilateral eye disability, as well as his claims for service connection for diabetic nephropathy and erectile dysfunction, were received by VA on December 9, 2016, with no evidence of informal or formal claims as to these matters prior to this date. December 9, 2016 is, therefore, considered as the date of receipt of the claim. 38 C.F.R. § 3.155(a). The Board must now determine the date that entitlement arose, as the proper effective date for the award of service connection in this appeal will be the later of December 9, 2016 or the date that entitlement arose. 2017 VA examinations indicate that the Veteran's diabetic nephropathy was first diagnosed in 2010, that his erectile dysfunction was first diagnosed in 2009, and that his bilateral diabetic retinopathy was first diagnosed in 2010. Although the Veteran's diagnoses of diabetic nephropathy, erectile dysfunction, and bilateral diabetic retinopathy all predate the December 9, 2016 receipt of claim for service connection as to these disabilities, under the law, the proper effective date is the later of the two. See 38 C.F.R. § 3.400(b)(2). Therefore, the currently assigned effective date of December 9, 2016 for the award of service connection for bilateral diabetic retinopathy, diabetic nephropathy, and erectile dysfunction is proper, as this date occurred later than the date of diagnoses. As the preponderance of the evidence is against the claims for earlier effective dates, the Board finds that the claims of entitlement to an effective date earlier than December 9, 2016 for the award of service connection for bilateral diabetic retinopathy, diabetic nephropathy, and erectile dysfunction must be denied. Gilbert v. Derwinski,1 Vet. App. 49 (1990). 4. Entitlement to an effective date earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II The Veteran seeks an earlier effective date for the assignment of a 20 percent disability rating for his service-connected diabetes mellitus, type II. Based on a review of the relevant evidence of record, the Board finds that entitlement to an effective earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II, is not warranted. For an increased rating claim, the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, it will be the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). Here, the Veteran's claim for an increased rating for his service-connected diabetes mellitus, type II, was received by VA on December 9, 2016. Post-service private treatment records reflect that the Veteran's increase in disability occurred around 2013, more than one year prior to receipt of his claim for an increased rating. As the Veteran did not file his claim for an increase in rating for his diabetes mellitus, type II, within one year following a shown increase in disability in 2013, the effective date will be the date of receipt of claim for an increased rating, which is December 9, 2016. Therefore, the currently assigned effective date of December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II, is proper. As the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that the claim of entitlement to an effective date earlier than December 9, 2016 for the assignment of a 20 percent disability rating for diabetes mellitus, type II, must be denied. Gilbert v. Derwinski,1 Vet. App. 49 (1990). 5. Entitlement to an effective date earlier than December 9, 2016 for the award of SMC based on loss of use of a creative organ The Veteran seeks an earlier effective date for the assignment of SMC based on loss of use of a creative organ. Based on a review of the relevant evidence of record, the Board finds that entitlement to an effective earlier than December 9, 2016 for the award of SMC based on loss of use of a creative organ is not warranted. The SMC rate payable under 38 C.F.R. § 3.350(a)(1) is warranted for loss of use of a creative organ. VA received the Veteran's claim for service connection for erectile dysfunction on December 9, 2016. Service connection for erectile dysfunction secondary to service-connected diabetes mellitus, type II, was granted with an effective date of December 9, 2016, the date of receipt of the Veteran's claim for service connection for erectile dysfunction. SMC based on loss of use of a creative organ was also granted with an effective date of December 9, 2016, based on the grant of service connection for erectile dysfunction. The evidence of record does not reflect a claim for service connection for erectile dysfunction prior to December 9, 2016. While the evidence reflects a diagnosis of erectile dysfunction in 2010, this diagnosis predates the December 9, 2016 receipt of the Veteran's claim for service connection for erectile dysfunction. Under the law, the proper effective date is the later of the two. See 38 C.F.R. § 3.400(b)(2). In this case, as the award of SMC based on the loss of use of a creative organ stems from the grant of service connection for erectile dysfunction with an effective date of December 9, 2016, the date of receipt of claim, the effective date of SMC will also be December 9, 2016. Therefore, the currently assigned effective date of December 9, 2016 for the award of SMC based on the loss of use of a creative organ is proper. As the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that the claim of entitlement to an effective date earlier than December 9, 2016 for the award of SMC based on the loss of use of a creative organ must be denied. Gilbert v. Derwinski,1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection, to include on a secondary basis, for peripheral neuropathy of the right lower extremity is remanded. 2. Entitlement to service connection, to include on a secondary basis, for peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to an initial disability rating in excess of 50 percent for bilateral diabetic retinopathy is remanded. 4. Entitlement to an initial disability rating in excess of 80 percent for diabetic nephropathy is remanded. 5. Entitlement to an initial compensable disability rating for erectile dysfunction is remanded. 6. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is remanded. In support of his claims, the Veteran submitted an August 2019 Social Security Administration (SSA) disability benefits decision letter. While numerous medical treatment records are referenced throughout the SSA decision, these records are not attached, nor are they included elsewhere in the Veteran's claims file. They appear relevant to the Veteran's claims because they may relate to the current severity of the Veteran's service-connected diabetes mellitus, type II, diabatic retinopathy, diabetic nephropathy, and erectile dysfunction, and also reflect possible diagnoses of peripheral neuropathy of the right and left lower extremities. A remand is required to allow VA to obtain authorization and request these SSA records. 38 U.S.C. § 5103A(b)(1). 7. Entitlement to a TDIU is remanded. In his March 2021 Appellate Brief, the Veteran indicated that he is unable to maintain and sustain substantially gainful employment due to his service-connected disabilities. As previously discussed, the SSA's August 2019 disability benefits decision letter references numerous exhibits that are not in the Veteran's claim file. Specifically, reference is made to testimony by the Veteran as to his employment history. This is significant since the Board cannot make a fully-informed decision regarding the Veteran's ability to obtain and maintain substantially gainful employment, as the Veteran's file contains no information as to his employment history and whether or not he is currently employed. As such, a remand is necessary to allow VA to obtain authorization and request a complete set of the Veteran's SSA records, and to afford the Veteran an opportunity to submit a formal TDIU application (VA Form 21-8940) with his employment history. The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Obtain from the SSA, all records pertinent to the Veteran's claim for Social Security disability benefits, as well as the medical records and statements made by the Veteran that were relied upon concerning that claim. Any negative search should be noted in the record and communicated to the Veteran. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran's claims file. 3. Provide the Veteran with a VA Form 21-8940, Application for a TDIU, and request that he submit the completed form with all appropriate information. 4. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.