Citation Nr: 18154152
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-52 766
DATE:	November 29, 2018
ORDER
An effective date prior to February 13, 2014, for the grant of service connection for diabetes mellitus type 2 is denied.
FINDING OF FACT
No evidence prior to February 13, 2015, may be construed as a formal or informal claim of entitlement to service connection for diabetes mellitus.
CONCLUSION OF LAW
The criteria for an effective date earlier than February 13, 2014, for the grant of service connection for diabetes mellitus have not been met.  38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400, 3.816 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1968 to September 1972.
This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.
The Veteran is unrepresented in this appeal.
Duties to Notify and Assist
The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Laws and regulations
Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018).  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application.  38 U.S.C. § 5110(a).  If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation.  38 C.F.R. § 3.400(b)(2).  
Prior to March 24, 2015, a claim was “a 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).  An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.”  38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).  Because the Veteran's claim was received prior to March 24, 2015 (February 13, 2015), the former regulations apply.
With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis.  38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually 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, 14 Vet. App. at 35.  
Analysis
The Veteran’s service connection claim for diabetes mellitus was received by VA on February 13, 2015.  In a June 2015 rating decision, the RO granted service connection for diabetes mellitus, effective February 13, 2014.  The Veteran has not asserted that he submitted a claim for diabetes prior to February 2015.  Instead, he argues that since he was diagnosed with diabetes in February 2000 (and was receiving VA treatment at that time), he should have been instructed or at least been made aware by VA officials that he could file a claim for diabetes years prior to February 2015.  He has asserted that he asked VA personnel whether there was any connection between diabetes mellitus and Agent Orange and was told that there was not.
The Board must consider whether any evidence of record prior to February 13, 2015, could serve as a formal or informal claim in order to entitle the Veteran to an earlier effective date for diabetes.  In this regard, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.
In reviewing the evidence to determine whether any communication submitted by the Veteran indicated an attempt to apply for service connection for diabetes, no document (or telephone contact) submitted prior to February 13, 2015 indicates an intent to pursue a claim of entitlement to service connection for diabetes mellitus.
Under 38 C.F.R. § 3.157, a VA report of examination or hospitalization, and evidence from a private physician or layman, will be accepted as an informal claim for benefits.  The provisions of 38 C.F.R. § 3.157 only apply, however, once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable.  Here, the Veteran’s February 13, 2015 claim for diabetes was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157 (b), and, as such, even though a VA records beginning in February 2000 discussed the fact that the Veteran had diabetes, that regulation does not afford a basis for finding that a claim, be it formal or informal, of entitlement to service connection for diabetes, was of record earlier than February 13, 2015.  38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993).
Although the record clearly shows that the Veteran was receiving treatment from VA for diabetes years prior to the filing of his claim in February 2015, such cannot serve as an informal claim, and a review of the claims file does not reveal any unacted upon claim for service connection for a diabetes disability prior to that received on February 13, 2015.  The Board emphasizes that a claim must identify the benefit sought.  The mere reference in medical treatment records to that disability is not a claim.  See 38 C.F.R. § 3.155; MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (medical treatment for a disability, without an intent expressed by a claimant to seek benefits based on that disability does not constitute an informal compensation claim).
The Veteran has contended that certain VA personnel should have informed him that he was eligible to file a disability claim for diabetes prior to February 2015.  While sympathetic to the Veteran's assertions in this regard, the Board observes that even if the Veteran had been given erroneous advice by a VA employee, such a situation would not allow the Veteran to prevail in this case.  No formal or informal claim was filed in this case prior to February 2015, and payments of monetary benefits from the Federal Treasury must be authorized by statute, notwithstanding incomplete or even erroneous information provided, and regardless of extenuating circumstances or claims of fairness.  Harvey v. Brown, 6 Vet. App. 416 (1994).
The Board observes that diabetes mellitus was added to the list of diseases subject to service connection on a presumptive basis, effective May 8, 2001.  See 66 Fed. Reg. 23166-23169 (May 8, 2001).  If an award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law.  38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a).  There are exceptions to this rule, however, which allow for retroactive payments.  If the claim is reviewed on the initiative of VA or by request of the claimant within 1 year from the effective date of the law or VA issue, then the proper effective date is the same date the change of law went into effect.  38 C.F.R. § 3.114 (a)(1).  If a claim is reviewed on the initiative of VA or by request of the claimant more than one year after the effective date of the law, the effective date will be one year prior to the date of administrative review or Veteran/claimant request if the Veteran met all of the requirements for eligibility as of the date of the liberalizing law.  38 C.F.R. § 3.114 (a)(2), (3).  
The Veteran's claim in this case was begun at the request of the Veteran in 2015, which is more than one year after the effective date of the May 2001 law that added diabetes to the list of diseases subject to service connection on a presumptive basis.  As such, the effective date in this case under 38 C.F.R. § 3.114 is one year prior to the date of the receipt of the Veteran's February 13, 2015 claim, which in this case is February 13, 2014, the date assigned by VA in this case.
The Veteran in this case performed a period of service in Vietnam and has a diagnosis of diabetes mellitus.  As such, the Veteran is considered a Nehmer class member and, as such, the provisions of 38 C.F.R. § 3.816 are applicable.  38 C.F.R. § 3.816(c)(2) provides that, if a Nehmer class member’s claim for disability compensation for the covered herbicide disease (here, diabetes mellitus) was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (here, May 8, 2001), 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 (here, 2000, the date of the Veteran's diabetes diagnosis).  The Veteran did not file a claim for diabetes prior to February 13, 2015, and this provision will thereby not allow for an earlier effective date in this case.
In sum, an effective date earlier than February 13, 2014, for the grant of service connection for diabetes mellitus is not warranted.
 
K. MILLIKAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David Nelson 

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