Citation Nr: 21042727 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-35 026 DATE: July 13, 2021 ORDER Entitlement to an effective date earlier than September 18, 2015 for the grant of entitlement to service connection for right upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy is denied. Entitlement to an effective date earlier than September 18, 2015 for the grant of entitlement to service connection for left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy is denied. FINDINGS OF FACT 1. Entitlement to service connection for right upper extremity tremors and left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy was granted in an April 2016 rating decision, and assigned an effective date of September 18, 2015, the date the claim for Parkinson's Disease was received by VA. 2. There was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for right upper extremity tremors or left upper extremity tremors prior to September 18, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 18, 2015 for the grant of service connection for right upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 3.816. 2. The criteria for an effective date earlier than September 18, 2015 for the grant of service connection for left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1968 to November 1970, to include service in the Republic of Vietnam. The Veteran's awards and decorations for his service include a Vietnam Cross of Gallantry with Palm and a Combat Aircrew Insignia, among others. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Cleveland, Ohio. In September 2020, the Veteran testified before a Veterans Law Judge. A copy of the transcript has been associated with the claims file. The Veterans Law Judge who conducted this September 2020 hearing has since retired. In December 2020 correspondence, the Veteran was informed that the Veterans Law Judge who conducted the September 2020 hearing was no longer employed at the Board and was given the opportunity to request another hearing. The December 2020 correspondence notified the Veteran that if he did not provide a response in 30 days, it would be assumed that he did not want another hearing. The Veteran did not respond to that letter, and the Board will therefore proceed with its adjudication. At his September 2020 Board hearing, the Veteran's testimony included a suggestion of the worsening of his service-connected right upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy and left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy. In the light of such testimony, the Board notes that if the Veteran wishes to pursue his claims for increased ratings for right upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy and left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy, he is encouraged to file a supplemental claim. Earlier Effective Date The Veteran seeks an effective date earlier than September 18, 2015 for the award of service connection for right upper extremity tremors and left upper extremity tremors. Specifically, the Veteran and his representative assert that he should be assigned effective dates assigned to the date that tremors were first present and diagnosed as essential tremors in the early 2000s. See Board hearing transcript, September 9, 2020. Additionally, the Veteran's representative asserts that the Veteran's right upper extremity tremors and left upper extremity tremors are associated with his service-connected diabetes mellitus and hence should be assigned an earlier effective date of March 20, 2001. According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement to an award of service connection will be 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, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has repeatedly rejected the argument that a disability service connected as secondary to an underlying service-connected disability be entitled to the effective date of the underlying disability. Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017); Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528 (2008). The Federal Circuit has also found that there is nothing in the history of 38 C.F.R. § 3.310(a) to suggest that a claim for secondary service connection should be treated as part of a claim for primary service connection. Manzanares, supra. It was further determined a claim for secondary service connection is not an "ancillary benefit" within the meaning of 38 C.F.R. § 3.155(d)(2), and all ancillary benefits stem from a specific condition that is the subject of the claim, not some other unidentified condition. Id. The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and 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 claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of history, on September 18, 2015, the RO received the Veteran's claim for entitlement to service connection for Parkinson's Disease. The Veteran specified that he was seeking entitlement to service connection for Parkinson's Disease and contended that the onset of his condition was in 2002, when his treatment for symptoms began. He also noted that he was treated for tremors in 2007. In the April 2016 rating decision, the RO granted entitlement to service connection for right upper extremity tremors and left upper extremity tremors, and assigned an effective date of September 18, 2015. The Veteran submitted a January 2017 notice of disagreement as to the April 2016 rating decision granting entitlement to service connection for right upper extremity tremors and left upper extremity tremors. The Veteran timely appealed the April 2016 rating decision to the Board. See VA Form 9, dated June 26, 2018, rec'd July 3, 2018. These basic facts are not in dispute. The Board finds that an effective date prior to September 18, 2015 for the award of service connection for right upper extremity tremors and left upper extremity tremors is not warranted. Here, the Veteran submitted his first correspondence to VA as to his Parkinson's Disease in September 2015. Previously, in an April 2007 rating decision, the RO granted entitlement to service connection for peripheral neuropathy of the right upper extremity and left upper extremity as secondary to service connected diabetes mellitus, and the Veteran was notified in April 2007. However, there was no further communication with regard to the Veteran's upper extremities until September 2015. Specifically, there is nothing in the record that could be interpreted as a formal or informal claim for entitlement to service connection for any disorder related to the upper extremities, to include right upper extremity tremors and left upper extremity tremors, prior to September 18, 2015 pursuant to which benefits could be granted. A claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran has not alleged submitting such a claim. The Board notes that there is an indication from the record that the Veteran suffered from tremors and symptoms of Parkinson's Disease before he filed his claim to entitlement to service connection for such. However, the effective date of an award of compensation is the date of the claim or the date entitlement arose, whichever is later. Therefore, the date of receipt of claims is the appropriate effective date as it is later than the date entitlement arose. See Lalonde v. West, 12 Vet. App. 377, 382-383. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400; Ellington v. Peake, 531 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). In the instant case, based on these regulations, the effective dates have been appropriately assigned as the date of the receipt of the Veteran's claim for entitlement to service connection for Parkinson's Disease. Consequently, there is no legal basis for assigning and effective date for the right upper extremity tremors and left upper extremity tremors associated with Parkinson's disease earlier than the award of service connection for Parkinson's disease. Id. In cases involving presumptive service connection due to herbicide exposure, there is an exception to general rule for effective dates. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to 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; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). In May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on a regulation that became effective on September 25, 1985. Nehmer v. United States Veterans Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). The District Court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service-connected under valid regulations. Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II). In May 1991, the government and Nehmer plaintiffs stipulated that VA would readjudicate any claim denials voided by the Nehmer I holding. Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The effective date of any resulting award would be based upon the filing date of the original claim for claims originally filed before May 3, 1989, or on the later of the filing date of the claim or the date of disability or death of the Veteran, for claims filed after May 3, 1989. See Williams v. Principi, 15 Vet. App. 189, 195-97 (2001) (en banc) aff'd, 310 F.3d 1374, 1375-76 (Fed. Cir. 2002). The Board notes that these stipulations were incorporated into 38 C.F.R. § 3.816. Under that regulation, the Veteran is a Nehmer class member as he is a Vietnam Veteran who has a covered herbicide disease, namely Parkinson's disease. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). 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. 38 C.F.R. § 3.816(c)(1), (c)(2). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Here, the Veteran submitted his formal claim of entitlement for Parkinson's disease on September 18, 2015, which was after the September 25, 1985 to May 3, 1989 timeframe. Further, he did not submit a claim for service connection for such condition between May 3, 1989 and August 31, 2010, the date on which the liberalizing law that added Parkinson's disease as a disease presumptively due to in-service exposure to herbicides became effective. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). Additionally, the Veteran was not denied service-connection for any disability that reasonably may be construed as Parkinson's disease. The Veteran filed a claim for service connection for diabetes mellitus in March 2001. In August 2004, the Veteran filed a claim for service connection for left and right leg peripheral neuropathy. As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816. The Board notes the assertions of the Veteran and his representative that the Veteran's right upper extremity tremors and left upper extremity tremors may be associated with his diabetes mellitus, and should be assigned an effective date related to his diabetes mellitus. However, as noted above, the Veteran did not file a claim as to his right upper extremity tremors and left upper extremity tremors as secondary to Parkinson's disease until September 2015; a claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Neither the Veteran nor his representative contend that such claim was filed with VA prior to September 18, 2015. Moreover, the Veteran was service connected for peripheral neuropathy of the left and right upper extremities as secondary to diabetes mellitus until September 18, 2015 when service connection for right and left upper extremity tremors associated with Parkinson's disease was granted. This argument is therefore without merit. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than September 18, 2015 for the grant of entitlement to service connection for right upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy and left upper extremity tremors associated with Parkinson's Disease with peripheral neuropathy. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.