Citation Nr: 22042167 Decision Date: 07/25/22 Archive Date: 07/25/22 DOCKET NO. 18-36 319 DATE: July 25, 2022 ORDER Entitlement to an effective date prior to February 3, 2016, for service connection for diabetes mellitus is denied. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran was not diagnosed with diabetes mellitus until October 2001. 2. The Veteran did not submit a claim, either formal or informal, for service connection for diabetes mellitus until February 3, 2016. 3. The Veteran's diabetes mellitus does not require the taking of insulin, a restricted diet, and regulation of activities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 3, 2016, for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.114, 3.400, 3.816. 2. The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to May 1969, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is associated with the claims folder. In January 2022, the Board remanded these matters for further development, which has been completed. 1. Entitlement to an effective date prior to February 3, 2016, for service connection for diabetes mellitus is denied. The Veteran contends that he is entitled to an earlier effective date for the award of service connection for diabetes mellitus. Specifically, the Veteran seeks an effective date back to his initial diagnosis for diabetes mellitus in 2001. See March 2017 notice of disagreement. In his June 2018 VA Form 21-4138, the Veteran reported that he was diagnosed with diabetes mellitus in October 2001. At the August 2021 Board hearing, the Veteran asserted that he had diabetes mellitus prior to the October 2001 diagnosis, and as early as spring 2000. The Veteran indicated that he noticed symptoms of weight loss, frequent urination, tingling in the hands, and fatigue occurring during that period which are manifestations of the later diagnosed diabetes mellitus. However, the Veteran also reported that he attributed those symptoms to other causes at the time, including working in a highly physical environment. The Veteran further testified that he had an episode where his wife had him check his blood pressure and rushed him to the Emergency Room. This episode appears to have occurred in October 2001 and led to his diagnosis. The Veteran also submitted a February 2019 statement from his son. The Veteran's son reported that the Veteran collapsed on the job in October 2001 and went to urgent care, where he was diagnosed with diabetes mellitus. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id., see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). Additionally, 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). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease, including diabetes mellitus. Of note, diabetes mellitus was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309 (e), which was made effective by VA as of July 9, 2001. The legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. See Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). Specifically, certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816 (c)(1)-(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. 38 C.F.R. § 3.816 (c)(4). 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 "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, 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. 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. VA amended its regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. The amendments are effective for claims and appeals filed on or after March 24, 2015. A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Moreover, the Court has explicitly stated that 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 v. Nicholson, 459 F.3d 132 (Fed. Cir. 2006); 38 C.F.R. § 3.155. Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Turning to the facts of this case, the Veteran filed a VA Form 21-0966 Intent to File on February 3, 2016. Subsequently, the Veteran filed a claim for service connection for diabetes mellitus related to Agent Orange in October 2016. In a January 2017 rating decision, the RO granted service connection for diabetes mellitus, effective February 3, 2016. The Veteran subsequently initiated this present appeal, asserting that he was entitled to an earlier effective date. However, the Board finds that the Veteran is not entitled to an earlier effective date for the grant of service connection for diabetes mellitus. The Veteran served in Vietnam and was granted presumptive service connection for diabetes mellitus based on exposure to herbicides during such service. Thus, he is a Nehmer class member. However, the record does not reflect that he was denied compensation for diabetes between September 25, 1985, and May 3, 1989. Likewise, it does not indicate that he submitted a claim for service connection for that condition between May 3, 1989, and May 8, 2001, the date on which the liberalizing law that added Type II diabetes mellitus as a disease presumptively due to in-service exposure to herbicides became effective. Accordingly, the effective date for the grant of service connection for diabetes must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816 (c)(4). Turning first to 38 C.F.R. § 3.114, in order for a claimant to be eligible for the one-year retroactive payment under that regulation, the evidence must show that the claimant met all the eligibility criteria of the liberalized benefit on the effective date of the liberalizing law and such eligibility existed continuously since that time. As already noted, diabetes mellitus was added to the list of diseases presumed to be related to herbicide exposure on May 8, 2001. A review of the record reflects that the Veteran was initially diagnosed with diabetes mellitus in October 2001, which is after that liberalizing date. In this regard, the October 2001 private treatment records noted a new diagnosis of diabetes mellitus. Treatment records from October 14, 2001, noted no prior history of diabetes mellitus. On that date, the Veteran was admitted for feeling lightheaded and elevated blood sugar readings at home. Laboratory testing on that date showed level of glucose and glycohemoglobin well above the reference range. As the initial diagnosis was not made until after the liberalizing date, assignment of an earlier effective date under 38 C.F.R. § 3.114 is not warranted. The Board had considered the statements of the Veteran and lay witnesses that he had symptoms of diabetes mellitus prior to his official diagnosis, to include as early as spring of 2000; however, a lay person is not competent to make such a diagnosis and such statements are not competent. In fact, the Veteran attributed his symptoms to other causes while he was experiencing them. Distinguishing symptoms of diabetes mellitus from other common issues requires specialized testing and medical knowledge beyond that of a lay person. As such, diagnosing diabetes mellitus is medically complex in nature, and the Veteran is not shown to have the required training or experience to competently opine on the matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the Veteran has not reported an earlier diagnosis made by a trained or qualified medical professional. As the Veteran did not meet the eligibility criteria on the date of the liberalizing law, an earlier effective date under 38 C.F.R. § 3.114 is not warranted. Turning to 38 C.F.R. § 3.400, the Veteran has not asserted, and the claims file does not reflect, that he or an authorized representative submitted a formal or informal claim for service connection for diabetes mellitus prior to the currently assigned effective date. The Veteran first submitted an intent to file received by VA on February 3, 2016, with a subsequent claim for service connection for diabetes mellitus in October 2016. The effective date is assigned based on the date that the intent to file was received by VA. Accordingly, assignment of an earlier effective date under 38 C.F.R. § 3.400 is not warranted. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Here, based on the evidence of record and the applicable VA regulations, the earliest date allowable for the award of service connection for diabetes mellitus is the current effective date of February 3, 2016- the date on which the Veteran's intent to file for service connection was initially received. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As the persuasive evidence weighs against the claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to an earlier effective date is not warranted. 2. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus is denied. The Veteran contends that he is entitled to a higher rating because of his daily medication, restricted diet, and blood tests multiple times per week. See March 2017 notice of disagreement; June 2018 VA Form 21-4138. At the August 2021 Board hearing, the Veteran testified that he self-regulates his physical activities and has difficulty walking even for small distances. As noted, the Board remanded this issue for further development in January 2022. As instructed in the remand, the RO provided the Veteran another diabetes mellitus VA examination, obtained updated VA treatment records, and sought to obtain additional private treatment records. The private medical facility identified by the Veteran responded to the RO and indicated no records were available. There has been substantial compliance with its prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's diabetes mellitus is currently rated under Diagnostic Code 7913, with a 20 percent rating effective February 3, 2016. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Because the Veteran is in receipt of a 20 percent evaluation, a higher 40 percent rating under Diagnostic Code 7913 requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. Further, under Diagnostic Code 7913, a 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Veteran was afforded a VA examination for his diabetes mellitus in April 2018. The examiner noted that the Veteran's disability was managed by restricted diet and prescribed oral hypoglycemic agent. There was no regulation of activities as part of the Veteran's medical management of diabetes mellitus. Moreover, the Veteran received care from his provider less than two times per month for episodes of ketoacidosis or hypoglycemia. The Veteran had no episodes of hospitalization. The examiner noted intentional weight loss, peripheral neuropathy, and erectile dysfunction, but not renal dysfunction, nephropathy, or retinopathy. As to functional impact, the Veteran was noted to have decreased ability to work due to the neuropathy in his hands and feet because of impaired ability in gripping, pulling, pushing, and carrying. The Veteran also had impairments as a result of his lower extremity neuropathy due to decreased ability to work on heights and ladders, walk on uneven surfaces, and stand for prolonged periods without a break. In June 2020, the Veteran was afforded another VA examination. The examiner noted that the Veteran was on oral hypoglycemic agents, but not any injection of insulin. Moreover, the Veteran did not require any regulation of activities. The examiner also noted that the Veteran required less than two visits to a diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions; that he had no episodes of ketoacidosis or hypoglycemia requiring hospitalization during the previous 12 months; and that he did not have progressive unintentional weight loss or loss of strength attributable to his diabetes mellitus. The examiner noted that there was no peripheral neuropathy, nephropathy, renal dysfunction, or retinopathy, but the examiner noted a related diagnosis of erectile dysfunction. As to functional impact, the Veteran reported that he had been on the same medication regimen for the last 20 year and his diabetes had been well controlled. The Veteran was most recently afforded a VA examination in April 2022. The Veteran's diabetes mellitus was managed by restricted diet and prescribed oral hypoglycemic agents. It did not require the regulation of the Veteran's activities. The Veteran did not require more than two visits with a diabetic care provider for ketoacidosis or hypoglycemia. He did not have any hospitalizations for episodes of ketoacidosis or hypoglycemia. There was no loss of strength or unintentional weight loss. The Veteran did have diabetic peripheral neuropathy and erectile dysfunction. The examiner noted that diabetes mellitus resulted in difficulty standing for more than 20 minutes and dropping things due to neuropathy in his bilateral feet and his right hand. The VA examinations reports are competent medical evidence offering detailed specialized determinations pertinent to the rating criteria. They are consistent with the Veteran's treatment records. As such, the examination reports are the most probative evidence with regard to evaluating the disability on appeal; the medical evidence also contemplates the Veteran's descriptions of his symptoms. To warrant a higher, 40 percent rating, the Veteran's diabetes mellitus must require treatment with insulin, restricted diet, and regulation of activities. Again, regulation of activities is defined as avoidance of strenuous occupational and recreational activities. See Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). In this case, the evidence of record simply does not show that Veteran's occupational and recreational activities had been restricted by any medical provider. Rather, the Veteran's diabetes mellitus has been managed with restricted diet and an oral glycemic agent during the period on appeal. The medical evidence, including VA examinations reports, indicate that the Veteran's diabetes mellitus did not require insulin or regulation of physical activities. Although the Veteran is competent to report symptoms and limitation in activities due to physical impairments, he has not specifically averred that he was required to regulate his activities to control his diabetes mellitus. Turning to the diabetic complications, noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913, while compensable complications are to be rated separately unless they are part of the criteria used to support a 100 percent rating for diabetes. See Note (1) of Diagnostic Code 7913. Here, the Veteran is already rated separately for erectile dysfunction and peripheral neuropathy of the extremities. The Veteran did not challenge the separate ratings that were assigned for his peripheral neuropathy or erectile dysfunction, despite being provided with appellate rights, and as such, those ratings will not be discussed in this appeal. In sum, the competent and probative evidence of record is against finding that the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Accordingly, the evidence of record persuasively weighs against assigning an initial rating in excess of 20 percent at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no benefit of the doubt to be resolved. There are no additional expressly or reasonably raised issues presented on the record. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.