Citation Nr: 0005654 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-22 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an effective date earlier than October 4, 1994, for the award of service connection for diabetes mellitus. 2. Entitlement to an initial rating for diabetes mellitus greater than 20 percent. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from March 1984 to February 1988. This appeal to the Board of Veterans' Appeals (Board) arises from the January 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for diabetes mellitus effective October 4, 1994. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for an earlier effective date has been developed. 2. The veteran was separated from service on February 23, 1988, and he submitted a written application for VA medical treatment for diabetes on March 30, 1988. 3. Resolving reasonable doubt in the veteran's favor, his March 30, 1988, application for medical benefits constituted an informal claim for service connection for diabetes mellitus. 4. By a rating action in November 1988 the RO established that diabetes mellitus was a service-connected disability for purposes of treatment. CONCLUSION OF LAW The assignment of an effective date of February 24, 1988, for the award of service connection for diabetes mellitus is warranted. 38 U.S.C.A. §§ 5110 (a), (b)(1) (West 1991); 38 C.F.R. § 3.400 (b)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records dated in December 1987, reflect a laboratory test outside the established reference range, with insulin indicated. The veteran was separated from service because of disability, and he was entitled to disability severance pay. VA outpatient records dated in March 1988 show that the veteran requested treatment for diabetes mellitus. VA clinical records dated in May 1988 reflect a history of diagnosis of diabetes mellitus in October 1987, at which time the veteran had been complaining of dry mouth, polyuria, increased frequency of micturition, and polydipsia. In accordance with his request for treatment in March 1988, the veteran signed a written application for "medical benefits," dated March 30, 1988, which reflected that he had honorable service and was retired from military service due to disability. Of record is a VA Form 10-7131 dated in May 1988, reflecting a request for adjudicative action for medical treatment. In response to that request the RO in November 1988 established service connection for diabetes for hospital or outpatient treatment purposes. The November 1988 RO decision reflects that the veteran had been diagnosed with diabetes mellitus during service, and given a disability discharge due to that condition. It was also reflected that he had been treated for diabetes approximately one month after discharge. Received on October 4, 1994, was the veteran's VA Form 21- 526, Veteran's Application for Compensation or Pension, submitted by the veteran, which led to the grant of service connection for diabetes mellitus in January 1995. Legal Analysis The veteran's claim for an earlier effective date for diabetes mellitus is well grounded in that it is not inherently implausible. 38 U.S.C.A. § 5107(a). The facts relevant to the issue have been properly developed, and the statutory obligation of the VA to assist the veteran in the development of his claim is satisfied. Id. The law governing the assignment of an effective date for an award of disability compensation is contained in 38 U.S.C.A. § 5110(a),(b)(1) (West 1991), which provides that the effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. See also 38 C.F.R. § 3.400(b)(2) (1999) (to the same effect). Otherwise, in cases where the application is not filed until more than one year from release of service, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Id. The veteran claims an earlier effective date for the award of service-connected compensation benefits for diabetes mellitus. He contends that retroactive compensation benefits are warranted from the time of his separation from service. In this regard he argues that he was separated from service as a result of diabetes, and he reported to VA for treatment of the diabetes shortly after his active service ended. Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). 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). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). Moreover, the United States Court of Appeals for Veterans Claims (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. See Brannon v. West, 12 Vet. App. 32, 35 (1998). 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. 38 C.F.R. § 3.155. If an informal claim for an identified benefit is followed within one year by a formal claim for that benefit, the claim may be considered filed as of the date of receipt of the informal claim. Id. The applicable statutory and regulatory provisions require that VA look to all communications from the appellant which may be interpreted as applications or claims -- formal and informal -- for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). However, VA's duty to adjudicate all claims reasonably raised does not require VA to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Brannon, 12 Vet. App. at 35. On application of the pertinent law to the facts of this case shows that the veteran filed a written claim for medical benefits within one year from the date of his discharge from service. The development conducted by the RO in response to that request demonstrated that the veteran's diabetes mellitus had its onset during active, honorable service. Service connection for purposes of treatment was established on that basis. VA regulations require that even an informal claim, such as is claimed by the veteran, must demonstrate an intent to apply for an identified benefit. In this case, the initial document signed by the veteran in March 1988 was ambiguous with regard to whether the application for "medical benefits" evidenced an intention to claim entitlement to service connection for purposes of disability compensation. However, in the course of completing the application, the veteran informed VA that he had a current disability, and that the disability was the result of a disease he had incurred in his recent period of active, honorable service. Thus, the veteran submitted a written application for VA benefits, and demonstrated to VA that the elements of a claim for service connected disability compensation benefits were present. Accordingly, with reasonable doubt resolved in the veteran's favor, his March 1988 application must be considered an informal claim for service-connected disability compensation. Cf. Mitscher v. West, 13 Vet App 123 (1999) (concluding that an application for burial benefits which indicated that the veteran's death was service-connected constituted an informal claim for dependency and indemnity compensation.). The record does not reflect that the RO fulfilled the requirements of section 3.155(a) by "forward[ing]" to the veteran an "application form" once it had received his informal claim of March 30, 1988. See 38 C.F.R. § 3.155(a). Accordingly, the one-year filing period for such application did not begin to run. In the instant case, since the one- year period for filing a formal claim was never triggered, the March 30, 1988, date of the veteran's "informal claim" must be accepted, as a matter of law, as the date of his "claim" or "application" for purposes of determining an effective date under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §§ 3.1, 3.155(a), and 3.400. Accordingly, the proper effective date for the award of service connection is the day following the date of discharge or release from service. ORDER An effective date of February 24, 1988, is granted for service connection for diabetes mellitus. REMAND With regard to the evaluation of diabetes mellitus, the record reflects that subsequent to the statement of the case issued in May 1995, extensive medical evidence has been associated with the claims folder, which reflects treatment for diabetes. In this regard 38 C.F.R. § 19.31 (1999), provides that '[a] Supplemental Statement of the Case, so identified, will be furnished to the appellant and his or her representative, if any, when additional pertinent evidence is received after a Statement of the Case or the most recent Supplemental Statement of the Case has been issued . . . ." 38 C.F.R. § 19.31. Inasmuch as the RO has not issued a supplemental statement of the case addressing the additional pertinent evidence which is of record, the case must be returned to the RO for completion of the requisite procedural development. It is further noted that inasmuch as the regulations pertaining to the rating of diabetes mellitus were revised effective June 6, 1996, during the pendency of the veteran's claim, he is entitled to evaluation of his disability under either the previously existing regulations or the newly amended regulations, - whichever is determined to be more favorable in his individual case. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991); VAOPGCPREC. 11-97. Accordingly, the case is REMANDED for the actions listed below. The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet.App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. 1. The RO should review the veteran's claim for a higher evaluation for diabetes mellitus, on the basis of all pertinent evidence of record to include that evidence received since the May 1995 statement of the case, and all applicable law and regulations. In so doing the RO should determine whether the rating criteria in effect prior to June 6, 1996, or the amended criteria are more advantageous to the veteran. The RO must also take into account the laws and regulations applicable to the assignment of initial ratings, as explained by the U.S. Court of Appeals for Veterans Claims in Fenderson v. West, 12 Vet.App. 119 (1999). 2. In the event that the determination remains adverse to the veteran, he and his representative must be furnished a supplemental statement of the case which contains a summary of the applicable laws and regulations, with appropriate citations, and a discussion of the application of the laws and regulations to the facts. The veteran and his representative should be given an opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals