Case A26037703

TIFFANY HANSON · 2026 · Case ID: A26037703

GRANTED

Summary

The Veteran, a Navy Veteran who served from April 1969 to January 1971, including service in the Republic of Vietnam, appeals the denial of earlier effective dates for service connection for diabetes mellitus type II, erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy. The Veteran's original claims in November 2011 were denied by the RO in April 2012, and this decision became final as no appeal was filed. The Veteran submitted a supplemental claim in July 2023, which the RO granted service connection for diabetes mellitus type II based on presumed herbicide exposure and erectile dysfunction as secondary to diabetes. Later, the RO granted service connection for bilateral diabetic peripheral neuropathy as secondary to diabetes. The Veteran then sought earlier effective dates for these grants. The Board found that the Veteran's claims met the criteria for application of the Blue Water Navy Act, specifically 38 U.S.C. § 1116A, due to presumed herbicide exposure and the nature of the conditions claimed. The Board determined that entitlement to service connection for diabetes arose in 1993 based on the diagnosis and presumed exposure. For erectile dysfunction and diabetic peripheral neuropathy, entitlement arose in 2010 and 1994, respectively, after the onset of diabetes. Applying the earliest claim date of November 17, 2011, as the governing effective date for all granted conditions, the Board granted earlier effective dates for these conditions.

Rationale

Diabetes mellitus type II is a disease associated with herbicide exposure.; Veteran presumed to have been exposed to herbicides under Blue Water Navy Act.; Entitlement arose in 1993 based on diagnosis and presumed exposure.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250113-501221

Full Decision Text

Citation Nr: A26037703
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 250113-501221
DATE: April 22, 2026

ORDER

Entitlement to an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetes mellitus type II is GRANTED.

Entitlement to an effective date of November 17, 2011, but no earlier, for the grant of service connection for erectile dysfunction is GRANTED.

Entitlement to an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetic peripheral neuropathy, left lower extremity, is GRANTED.

Entitlement to an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetic peripheral neuropathy, right lower extremity, is GRANTED.

FINDINGS OF FACT

1. The Department of Veterans Affairs (VA) first received a claim of service connection for diabetes, erectile dysfunction, and diabetic peripheral neuropathy on November 17, 2011.

2. In an April 2012 rating decision, a Regional Office (RO) denied service connection claims for diabetes mellitus, erectile dysfunction, and diabetic peripheral neuropathy of bilateral lower extremities; the Veteran did not initiate an appeal within the requisite time period and the decision is final.

2. The Veteran served in the Republic of Vietnam and herbicide agent exposure is

presumed.

3. On July 3, 2023, the Veteran submitted an application requesting reopening of

service connection for diabetes mellitus type II, erectile dysfunction, and diabetic

peripheral neuropathy of bilateral lower extremity disabilities.

4. In a July 2023 rating decision, the RO granted service connection for diabetes

mellitus type II based on herbicide agent exposure, and erectile dysfunction as

secondary to diabetes mellitus.

5. In a May 2024 rating decision, the RO granted service connection for diabetic

peripheral neuropathy of bilateral lower extremities as secondary to diabetes

mellitus.

4. The Veteran was diagnosed with diabetes in 1993.

5. The Veteran has had erectile dysfunction since 2010.

6. The Veteran was diagnosed with diabetic peripheral neuropathy in 1994.

CONCLUSIONS OF LAW

1. The criteria for an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 1116, 1116A, 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400.

2. The criteria for an effective date of November 17, 2011, but no earlier, for the grant of service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1116, 1116A, 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400.

3. The criteria for an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetic peripheral neuropathy, left lower extremity, have been met. 38 U.S.C. §§ 1116, 1116A, 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400.

4. The criteria for an effective date of November 17, 2011, but no earlier, for the grant of service connection for diabetic peripheral neuropathy, right lower extremity, have been met. 38 U.S.C. §§ 1116, 1116A, 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the United States Navy from April 1969 to

January 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a

January 2025 rating decision issued by the RO.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal

(Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the

January 2025 supplemental claim decision on appeal. 38 C.F.R. § 20.301. If

evidence was submitted after the
3.400.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the United States Navy from April 1969 to

January 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a

January 2025 rating decision issued by the RO.

In the January 2025 VA Form 10182, Decision Review Request: Board Appeal

(Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the

January 2025 supplemental claim decision on appeal. 38 C.F.R. § 20.301. If

evidence was submitted after the RO issued the supplemental claim decision on

appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301,

20.801.

If the Veteran would like VA to consider any evidence that was submitted that the

Board could not consider, the Veteran may file a Supplemental Claim (VA Form

20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence

is new and relevant, VA will issue another decision on the claims, considering the

new evidence in addition to the evidence previously considered. Id. Specific

instructions for filing a Supplemental Claim are included with this Decision.

In a March 2025 decision, the Board awarded an earlier effective date of July 3, 2022 for the grant of service connection for diabetes, erectile dysfunction and diabetic peripheral neuropathy of bilateral lower extremities claims. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2025 Joint Motion for Partial Remand (JMPR) to the Court, the parties (the Veteran and the Secretary of VA) requested that part of the March 2025 Board decision that denied effective dates earlier than July 3, 2022 for the grant of service connection for diabetes, erectile dysfunction and diabetic peripheral neuropathy of bilateral lower extremities claims be vacated and remanded.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Legal Criteria - Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Prior to March 24, 2015, a claim is 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014).

For decisions issued prior to February 19, 2019, a final claim is one in which the period to file a notice of disagreement has expired or there is a disposition on appellate review. 38 C.F.R. § 3.160(d). A claimant must file a notice of disagreement within one year from the date that notice of the determination is mailed to him or her. 38 C.F.R. § 19.52. A decision will not become final if new and material evidence is submitted within one year of the decision. 38 C.F.R. § 3.156(b).

Congress enacted the Blue Water Act, which, in pertinent part, added a presumption of herbicide agent exposure for a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Pub. L. No. 116-23, 133 Stat. 966 (codified in relevant part at 38 U.S.C. § 1116A). Type II diabetes mellitus is a disability associated with exposure to herbicide agents in Vietnam. 38 U.S.C. § 1116.

The Blue Water Act permits the effective date for an award of benefits under that Act to be based on the date
which, in pertinent part, added a presumption of herbicide agent exposure for a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Pub. L. No. 116-23, 133 Stat. 966 (codified in relevant part at 38 U.S.C. § 1116A). Type II diabetes mellitus is a disability associated with exposure to herbicide agents in Vietnam. 38 U.S.C. § 1116.

The Blue Water Act permits the effective date for an award of benefits under that Act to be based on the date on which an individual filed a prior claim if, (1) a veteran filed a claim for disability compensation between September 1985 and January 2020; (2) the claim was for a disease covered by section 1116A; (3) VA denied the claim by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran; (4) the veteran, on or after January 1, 2020, submitted a claim for the same condition; and (5) VA granted the new claim pursuant to section 1116A. 38 U.S.C. § 1116A(c)(2)(B)(i), (ii); Crews v. McDonough, 36 Vet. App. 67, 81 (2023).

Notably, to be awarded an effective date based on a prior claim pursuant to the Blue Water Act and 38 U.S.C. § 1116A, the basis of the prior denial of service connection does not need to be solely by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran. The specific criteria that Congress enumerated for a retroactive effective date do not include a prohibition on the prior denial having been based in part on the lack of evidence of a current disability. Crews at 84-86.

Detailed Procedural History

On November 17, 2011, the Veteran submitted a VA 21-526b Supplemental Claim for Compensation requesting service connection for diabetes, bilateral lower

extremities, and erectile dysfunction. In an April 2012 rating decision, the RO

denied the claims. In a letter, dated the same month, the Veteran was notified of

the denials and informed of procedural and appeal rights.

Because the Veteran did not initiate an appeal of the April 2012 rating decision

within one year, it became final. 38 C.F.R. § 3.160(d). The only way that a final

rating decision can be revised is if it contains clear and unmistakable error (CUE).

Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. § 3.105(a). Further, it does not appear any additional relevant evidence was physically or constructively associated with the claims folder within one year of the April 2012 rating decision. 38 C.F.R. §3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

On July 3, 2023, the Veteran submitted a VA Form 20-0995 Decision Review

Request: Supplemental Claim for diabetes mellitus, bilateral diabetic peripheral

neuropathy of the lower extremities, and erectile dysfunction.

In a July 3023 rating decision, the RO granted service connection for diabetes

mellitus type II based on herbicide exposure, and erectile dysfunction as secondary

to diabetes mellitus and assigned applicable disability ratings, effective August 10,

2022.

In a May 2024 rating decision, the RO granted service connection for

diabetic peripheral neuropathy of bilateral lower extremities as secondary to

service-connected diabetes mellitus and assigned applicable disability ratings,

effective July 3, 2023.

In a May 2024 VA Form 20-0996 Decision Review Request: Higher-Level Review,

the Veteran requested earlier effective dates for the grants of service connection for

diabetes mellitus, erectile dysfunction, and diabetic peripheral neuropathy of

bilateral lower extremities claims. In an August 2024 rating decision, the RO

denied earlier effective dates for service connection for diabetes mellitus and erectile dysfunction and granted earlier effective dates of August 10, 2022, for

service connection for diabetic peripheral neuropathy of bilateral lower extremities

based on a finding of CUE.

In an August 2024 VA Form 20-0995 Decision Review Request: Supplement
ratings,

effective July 3, 2023.

In a May 2024 VA Form 20-0996 Decision Review Request: Higher-Level Review,

the Veteran requested earlier effective dates for the grants of service connection for

diabetes mellitus, erectile dysfunction, and diabetic peripheral neuropathy of

bilateral lower extremities claims. In an August 2024 rating decision, the RO

denied earlier effective dates for service connection for diabetes mellitus and erectile dysfunction and granted earlier effective dates of August 10, 2022, for

service connection for diabetic peripheral neuropathy of bilateral lower extremities

based on a finding of CUE.

In an August 2024 VA Form 20-0995 Decision Review Request: Supplemental

Claim, the Veteran requested earlier effective dates for the grants of service

connection for diabetes mellitus, erectile dysfunction, and diabetic peripheral

neuropathy of bilateral lower extremities claims. In a January 2025 rating

decision, the RO denied the requests for earlier effective dates for all claims.

The Veteran timely submitted a January 2025 VA Form 10182, NOD, to the Board,

giving rise to the current appeal.

Analysis - Diabetes, Erectile Dysfunction and

Diabetic Peripheral Neuropathy

The Veteran asserts that he is entitled to earlier effective dates under the Blue Water Navy Act. See August 2024 VA Form 20-10208 Document Evidence Submission.

In the December 2025 JMPR, the Board was directed to provide adequate reasons and bases, addressing potentially favorable evidence of the Veteran's exposure to herbicides under the Blue Water Navy Act, address effective date provisions of 38 U.S.C. § 1116A, and consider the Court's holding in Crews.

In a July 2023 rating decision, the RO granted service connection for type II diabetes mellitus based on presumed in-service exposure to herbicide agents, and erectile dysfunction as secondary to type II diabetes mellitus. In a May 2024 rating decision, the RO granted service connection for bilateral lower extremity diabetic peripheral neuropathy disabilities on a secondary basis to type II diabetes mellitus.

The Veteran's original claims for entitlement to service connection for diabetes, erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy disabilities were received in November 2011 (which is between September 1985 and January 2020). Accordingly, the provisions of the Blue Water Navy Act are for application.

With respect to type II diabetes mellitus, this is a disease covered by 38 U.S.C. § 1116A. The RO initially denied the diabetes claim in an April 2012 rating decision for several reasons: (1) the presumption of in-service exposure to herbicidal agents did not apply to the Veteran because there was no proof of Vietnam in-country service, and the evidence of record did not otherwise establish that he was exposed to herbicidal agents, which meant service connection on a presumptive basis was not available; (2) the Veteran's diabetes mellitus, type II, did not manifest to a compensable degree within 1 year following his release from active service; (3) the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for diabetes; and (4) the evidence of record did not otherwise show that there was an event, disease, or injury in service.

For erectile dysfunction and bilateral lower extremity peripheral neuropathy disabilities, in the April 2012 rating decision, these claims were denied because the underlying disability of type II diabetes mellitus was not service connected; therefore service connection on a secondary basis could not be established, and there was no evidence of aggravation during service.

The Board finds that the bases for denial of diabetes, erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy claims satisfy the criterion of denial "by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran."

Consequently, consistent with the December 2025 JMPR, the Board finds that the Blue Water Navy Act applies to the Veteran's claims. 38 U.S.C. § 1116A; Crews, 36 Vet. App. at 80-81.

The Board observes that neither the holding in Crews nor the December 2025 JMPR requires the Board to assign a specific effective date pursuant to the Blue Water Navy Act/38 U.S.C. § 1116A. Indeed, in Crews, the Court stated that "the Blue Water Act permits the effective date for an award of benefits under that Act to be based on 'the date on which [an] individual filed [a] prior claim'" if the above-discussed criteria are met. (italics added for emphasis). Crews, 36 Vet. App. at 80. Thus, the Board finds that permission to assign an earlier effective date and/or not
. App. at 80-81.

Given the availability of an earlier effective date for type II diabetes mellitus under the Blue Water Navy Act, the Board must ascertain whether an earlier effective is warranted. In other words, although the Veteran may be eligible for an effective date prior to July 3, 2022 under the Blue Water Navy Act, the Board must ascertain whether the Veteran is entitled to one under the relevant regulations.

Again, the governing law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year after separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

The date of the Veteran's original claim is November 17, 2011. The Board will now ascertain the date entitlement arose insofar as it applies to the November 17, 2011 claims.

To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006).

Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. The Federal Circuit explained: "[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that '[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.' The statute contains no exception to this rule for a claim." Id. at
.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. The Federal Circuit explained: "[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that '[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.' The statute contains no exception to this rule for a claim." Id. at 1370; see Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017).

Here, in the April 2012 rating decision that initially denied the claim for service connection for diabetes, the RO conceded that the Veteran had a current diagnosis of diabetes mellitus, type II, based on VA treatment records. A review of VA treatment records shows a history of a diabetes diagnosis since 1993. Therefore, a current disability has been established.

Turning to the in-service element, in accordance with the December 2025 JMPR, the Veteran is presumed to have been exposed to herbicidal agents during his active service pursuant to the Blue Water Navy Act. Consequently, a nexus is presumed because diabetes mellitus type II is a listed disability subject to presumptive service connection due to herbicide agents exposure. The Board finds that the date entitlement arose for diabetes was in 1993 when a diagnosis of diabetes was provided because exposure to herbicide agents is presumed and type II diabetes mellitus is a condition subject to presumptive service connection.

Based on the foregoing, an effective date prior to July 3, 2022 is warranted for the grant of service connection for type II diabetes under the Blue Water Navy Act. 38 U.S.C. § 1116A; 38 C.F.R. § 3.400.

Here, the Veteran's original claim was received on November 17, 2011, more than one year after his 1971 separation from service. Because the date of receipt of the claim is the later than the date entitlement arose, the Board finds the appropriate effective date is November 17, 2011 for the grant of service connection for type II diabetes mellitus. 38 C.F.R. § 3.400.

As for erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy claims, the Board finds that the date entitlement arose was in 1994 and 2010. The Veteran has reported an onset of erectile dysfunction since 2010. See May 2024 VA Examination Report. He is competent to report the onset of lay-observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). For diabetic peripheral neuropathy, he has had a diagnosis since 1994. See May 2024 VA Examination. Consistent with Ellington, the Board finds that erectile dysfunction manifested at least as of 2010 and diabetic peripheral neuropathy disabilities manifested at least as of 1994 after the onset of type II diabetes mellitus.

Because the date of receipt of the claims is the later date, the Board finds the appropriate effective date is November 17, 2011 for the grant of service connection for erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy disabilities as secondary to diabetes mellitus type II. 38 C.F.R. § 3.400.

An effective date prior to November 17, 2011 for all claims is not warranted because this is the earliest date that the Veteran filed a claim seeking service connection for diabetes, erectile dysfunction, and peripheral neuropathy disabilities. There is no informal claim for service connection prior to the unappealed April 2012 rating decision. 38 C.F.R. § 3.155(a). Here, neither the Veteran, nor his representative has identified any communication or action indicating an intent to apply for benefits related to diabetes mellitus prior to the April 2012 denial. Instead, the Veteran requests earlier effective dates based

on herbicide agent exposure.

In summary, an effective date of November 17, 2011, but no earlier, is warranted for grants of service connection for type II diabetes mellitus, erectile dysfunction, and bilateral lower extremity diabetic peripheral neuropathy claims. To the extent the Board is granting the matter, reasonable doubt has been resolved in the Veteran's favor. 38 C.F.R. § 3.102.

TIFFANY HANSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Amanda Baker, Counsel

The
an intent to apply for benefits related to diabetes mellitus prior to the April 2012 denial. Instead, the Veteran requests earlier effective dates based

on herbicide agent exposure.

TIFFANY HANSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Amanda Baker, 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.

Analyze in VA Law Explorer