DIABETES MELLITUS

CYNTHIA M. BRUCE · 2026 · Case ID: A26039294

MIXED

Summary

The Veteran, who served in the U.S. Air Force from July 1966 to August 1987, passed away in September 2023, and his surviving spouse is pursuing his appeals. The Veteran sought earlier effective dates for service connection for type II diabetes mellitus with erectile dysfunction, bilateral lower extremity diabetic peripheral neuropathy (sciatic nerve), diabetic nephropathy, and special monthly compensation (SMC) for loss of use of a creative organ. The Board granted earlier effective dates for these conditions: July 14, 2004, for diabetes mellitus with erectile dysfunction, bilateral neuropathy, and SMC; and November 14, 2008, for diabetic nephropathy. The Veteran also claimed service connection for bladder cancer, with the Board granting an effective date of November 29, 2020, based on presumptive service connection due to herbicide exposure in Thailand, citing 38 C.F.R. § 3.156(c) for reconsideration due to new service department records. The Board remanded claims for higher initial disability ratings for diabetes mellitus, its complications (neuropathy, erectile dysfunction), diabetic nephropathy, and bladder cancer, as well as for earlier effective dates for TDIU and Dependents' Educational Assistance (DEA). The remand is necessary to allow the AOJ to determine appropriate ratings for the newly established appeal periods and to adjudicate the TDIU and DEA claims.

Rationale

New service department records submitted in January 2020 supported herbicide exposure claim.; Diabetes mellitus is presumptively linked to herbicide exposure.; Effective date of July 14, 2004, granted as it is the later of the claim date and when entitlement arose.

Service Branch

AIR FORCE

Special Benefit

TDIU; SMC

Docket No.

260401-643156

Full Decision Text

Citation Nr: A26039294
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 260401-643156
DATE: April 28, 2026

ORDER

An effective date of July 14, 2004, for the award of service connection for type II diabetes mellitus with erectile dysfunction is granted.

An effective date of July 14, 2004, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted.

An effective date of July 14, 2004, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted.

An effective date of July 14, 2004, for the award of special monthly compensation (SMC) for loss of use of a creative organ under the provisions of 38 U.S.C. § 1114(k) is granted.

An effective date of November 14, 2008, for the award of service connection for diabetic nephropathy is granted.

An effective date of November 29, 2020, for bladder cancer, in remission, is granted.

REMANDED

Entitlement to a higher initial disability rating for type II diabetes mellitus with erectile dysfunction is remanded.

Entitlement to a higher initial disability rating for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is remanded.

Entitlement to a higher initial disability rating for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is remanded.

Entitlement to a higher initial disability rating for diabetic nephropathy is remanded.

Entitlement to a higher initial compensable disability rating for bladder cancer, in remission, is remanded.

Entitlement to an effective date earlier than June 30, 2011, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

Entitlement to an effective date earlier than June 30, 2011, for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded.

FINDINGS OF FACT

1. The Veteran filed an initial claim of entitlement to service connection for diabetes mellitus received by VA on July 14, 2004; the claim was denied in a July 2005 rating decision.

2. In January 2020, new and relevant service department records which were not of record but existed at the time of the July 2005 rating decisions were associated with the claims file; these records documented exposure to herbicides during active service, and, consequently, a March 2020 Board decision granted service connection for diabetes mellitus, in part based on these records.

3. The evidence of record demonstrates that the Veteran's diabetes mellitus was diagnosed in 2002, and that his initial claim for service connection was received by VA on July 14, 2004.

4. The Veteran had complications of diabetes including bilateral lower extremity diabetic peripheral neuropathy (sciatic nerve) and erectile dysfunction diagnosed prior to his 2004 claim for service connection for diabetes, and diabetic nephropathy which first manifested on November 14, 2008.

5. The Veteran's original claim for service connection for bladder cancer was received by VA on November 29, 2020, after he was diagnosed with bladder cancer; there is no evidence of any unadjudicated claim of service connection for bladder cancer, formal or informal, prior to the November 2020 claim.

6. Bladder cancer became a presumptive disease based upon herbicide exposure effective January 1, 2021.

7. The Veteran was awarded service connection for bladder cancer on a presumptive basis due to herbicide exposure in a January 2022 rating decision, effective from January 1, 2021.

CONCLUSIONS OF LAW

1. As evidence received since the July 2005 denial of service connection for diabetes mellitus includes relevant official service department records not previously considered, the criteria for reconsideration of the claim for service connection for diabetes mellitus and its complications are met. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(c).

2. The criteria for entitlement to an effective date of July 14, 2004, for the award of service connection for type II diabetes mellitus with erectile dysfunction have been met. 38 U.S.C. §§ 5101, 5103(a), 5103A, 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.400.

3. The
for service connection for diabetes mellitus and its complications are met. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(c).

3. The criteria for entitlement to an effective date of July 14, 2004, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with diabetes mellitus have been met. 38 U.S.C. §§ 5101, 5103(a), 5103A, 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.310, 3.400.

4. The criteria for entitlement to an effective date of July 14, 2004, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) associated with diabetes mellitus have been met. 38 U.S.C. §§ 5101, 5103(a), 5103A, 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.310, 3.400.

5. The criteria for entitlement to an effective date of July 14, 2004, for the award of SMC for loss of use of a creative organ under the provisions of 38 U.S.C. § 1114(k) have been met. 38 U.S.C. §§ 5101, 5103(a), 5103A, 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.400.

6. The criteria for entitlement to an effective date of November 14, 2008, for the award of service connection for diabetic nephropathy associated with diabetes mellitus have been met. 38 U.S.C. §§ 5101, 5103(a), 5103A, 5107, 5108, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.310, 3.400.

7. The criteria for entitlement to an effective date of November 29, 2020, for the award of service connection for bladder cancer have been met. 38 U.S.C. §§ 1116, 5101, 5103(a), 5103A, 5110, 7104; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.303, 3.400, 3.816.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the U.S. Air Force from July 1966 to August 1987. Unfortunately, he died in September 2023, while this appeal was pending. The appellant is his surviving spouse and has been granted recognition as substitute claimant in pursuing his pending appeals to completion. See December 19, 2023, Notification Letter.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2025 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the April 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket, waiving the remaining time within which to modify her chosen Board appeal docket. 38 C.F.R. § 20.202(c); see also Williams v. McDonough, 37 Vet. App. 305 (2024). Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision
5 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the April 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the appellant elected the Direct Review docket, waiving the remaining time within which to modify her chosen Board appeal docket. 38 C.F.R. § 20.202(c); see also Williams v. McDonough, 37 Vet. App. 305 (2024). Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the appellant would like VA to consider any evidence that was submitted that the Board could not consider, the appellant 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to a higher initial disability ratings for type II diabetes mellitus, right and left lower extremity diabetic peripheral neuropathy (sciatic nerve), and diabetic nephropathy, and entitlement to an effective date earlier than June 30, 2011, for the award of a TDIU and DEA under 38 U.S.C. Chapter 35, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Effective Dates

1. An effective date of July 14, 2004, for the award of service connection for type II diabetes mellitus with erectile dysfunction is granted.

2. An effective date of July 14, 2004, for the award of service connection for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted.

3. An effective date of July 14, 2004, for the award of service connection for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is granted.

4. An effective date of July 14, 2004, for the award of special monthly compensation (SMC) for loss of use of a creative organ under the provisions of 38 U.S.C. § 1114(k) is granted.

5. An effective date of November 14, 2008, for the award of service connection for diabetic nephropathy is granted.

The appellant is seeking earlier effective dates for the award of service connection for his type II diabetes mellitus with erectile dysfunction, bilateral lower extremity diabetic neuropathy, diabetic nephropathy, and SMC for loss of use of a creative organ. The current effective dates are as follows: June 30, 2011, for type II diabetes mellitus, bilateral lower extremity diabetic neuropathy, and SMC for loss of use of a creative organ; and September 9, 2021, for diabetic nephropathy.

The appellant contends that, in January 2020, the Veteran submitted new and relevant service department records, to include a declassified report from the Department of the Air Force entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand" (Project CHECO Report), which existed but was not of record at the time of the initial denial of service connection of the above disabilities, and that, as such, the newly obtained service records necessitate reconsideration of the originally filed service connection claims. 38 C.F.R. § 3.156(c)(1).

Upon review, the Board finds that the criteria in 38 C.F.R. § 3.156(c)(1) have been met in this case and that reconsideration of the initial service connection claims is warranted pursuant to the provisions of 38 C.F.R. § 3.156(c).

The Veteran's claims for the above disabilities rests on his service at Takhli Royal Thai Air Force Base (RTAFB) in Thailand from August 1967 to April 1968, where his duties placed him along the perimeter of the base and exposed him to herbicides. See March 3, 2020, Board Decision.

The Veteran filed an initial claim of entitlement to service connection for type
(c)(1).

The Veteran filed an initial claim of entitlement to service connection for type II diabetes mellitus due to herbicide exposure in Thailand in July 2004. The AOJ denied the claim in a July 2005 rating decision that became final, finding that there was no evidence of Vietnam service or other evidence of in-service exposure to herbicides.

The Veteran submitted a request to reopen his claim of entitlement to service connection for type II diabetes mellitus in June 2011, and, ultimately, in a March 2020 decision, the Board granted service connection for type II diabetes mellitus, finding on a facts-found basis that the Veteran's duties on the flight line in Thailand placed him near the base perimeter, and, as such, exposure to herbicides was conceded. A March 2020 rating decision implementing the Board's decision assigned an effective date of June 30, 2011.

After obtaining a VA examination, a September 2020 rating decision also granted service connection for bilateral lower extremity diabetic neuropathy and erectile dysfunction, and awarded SMC based on loss of use of a creative organ under the provisions of 38 U.S.C. § 1114(k); while the rating decision assigned an effective date of September 8, 2020, for these awards, the effective date for all of them was later changed to June 30, 2011.

The Veteran continuously pursued the initial disability rating assigned for his diabetes, and, in response to a September 2021 VA Form 20-0995, Decision Review Request, Supplemental Claim, seeking a higher initial rating for diabetes, the AOJ, in a January 2022 rating decision, granted service connection for diabetic nephropathy, effective from September 9, 2021.

Prior to the Board's March 2020 decision that granted service connection for type II diabetes mellitus based on herbicide exposure, in January 2020, the Veteran had submitted service department records which were not previously associated with the claims file, but which had existed at the time of the initial denial of service connection in 2005, including the Project CHECO Report. These service department records are relevant in that they tended to support the Veteran's assertion of significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. In other words, the documents tended to support the occurrence of the claimed in-service event, disease, or injury - i.e., exposure to herbicides.

As such, the service department records submitted by the Veteran in January 2020, to include the Project CHECO Report, meet the requirements of 38 C.F.R. § 3.156(c)(1), and the Board will reconsider the previously denied service connection claims.

In that regard, 38 C.F.R. § 3.156(c)(3) provides that an award that is made based on newly associated records that were in VA's possession at the time of the previously denied claim "is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later."

As above, the Veteran's initial claim of entitlement to service connection for diabetes mellitus, received by VA on July 14, 2004, is being reconsidered herein to determine the appropriate effective date.

At the time of the July 14, 2004, claim, the Veteran had been diagnosed with diabetes mellitus. See VA treatment record dated April 26, 2002. Diabetes mellitus is among the conditions presumptively related to herbicide exposure in service. 38 C.F.R. § 3.309(e). Thus, because the Board has previously found that the Veteran was exposed to herbicides while stationed in Thailand on a facts-found basis, all of the criteria for service connection for diabetes mellitus were met prior to the 2004 claim.

The appropriate effective date for the award of service connection for diabetes, therefore, is July 14, 2004, as the latter of the date of claim and the date entitlement arose is the correct effective date. 38 C.F.R. §§ 3.156(c)(3);
April 26, 2002. Diabetes mellitus is among the conditions presumptively related to herbicide exposure in service. 38 C.F.R. § 3.309(e). Thus, because the Board has previously found that the Veteran was exposed to herbicides while stationed in Thailand on a facts-found basis, all of the criteria for service connection for diabetes mellitus were met prior to the 2004 claim.

Further, the Veteran's bilateral lower extremity diabetic neuropathy, erectile dysfunction, and diabetic nephropathy are complications of the Veteran's diabetes mellitus. See September 9, 2020, VA Diabetes Mellitus, Male Reproductive Organ Conditions, and Diabetic Sensory-Motor Peripheral Neuropathy examination reports, and October 22, 2021, VA Kidney Conditions (Nephrology) examination report.

Moreover, the lower extremity diabetic neuropathy and erectile dysfunction manifested or were diagnosed prior to the 2004 claim. See November 1, 2004, VA treatment note (mild tingling in both feet); September 9, 2020, VA Diabetic Sensory-Motor Peripheral Neuropathy examination report (listing diagnosis of bilateral lower extremity diabetic peripheral neuropathy in 2004, and Veteran's report of foot numbness soon after his diabetes diagnosis); April 26, 2002, VA treatment record (diagnosis of erectile dysfunction). Thus, because the bilateral lower extremity diabetic neuropathy and erectile dysfunction, both complications of diabetes, existed at the time of the 2004 claim and because they are secondary to or associated with diabetes mellitus under the provisions of 38 C.F.R. § 3.310, an earlier effective date of July 24, 2004, is also warranted for the award of service connection for right and left lower extremity diabetic neuropathy and erectile dysfunction (which is rated as part of diabetes), as well as SMC for loss of use of a creative organ under the provisions of 38 U.S.C. § 1114(k). 38 C.F.R. § 3.156(c)(3).

Regarding the diabetic nephropathy, also a complication of the Veteran's diabetes, the Board finds that it was not present (i.e., entitlement did not arise) prior to the initial 2004 service connection claim.

Review of the most relevant medical evidence shows that a May 10, 2004, urine sample showed no microscopic damage to the Veteran's kidneys related to diabetes, and bloodwork showed normal kidney function with no nephropathy. Testing on November 1, 2004, April 6, 2005, November 9, 2005, June 7, 2006, December 4, 2006, December 12, 2006, May 29, 2007, and February 12, 2008, continued to show normal kidney function. On November 14, 2008, it was noted that the Veteran's urine showed the presence of protein, but that he continued to have normal kidney function tests. The clinician advised that they could protect the Veteran's kidneys by continuing to control his blood pressure and improving his diabetes control. On May 26, 2009, kidney function was stable. On January 8, 2010, it was again noted that the Veteran's urine had some protein in it, and the clinician stated his kidney function was "on the low end." On October 13, 2010, kidney function was in the normal range, although in a November 2, 2010, addendum, a clinician observed that given that the Veteran's most recent creatinine was at the upper end of the normal range, this indicated kidney function slightly low; the clinician recommended that he discontinue NSAIDs to protect his renal functioning. Kidney function was again noted to be low on July 8, 2011. Kidney function tests were normal on January 20, 2012, and January 10, 2013. On November 29, 2013, a clinician noted that the elevated creatinine and reduced EDFR are consistent with reduced kidney function which may be related to diabetes. On February 2, 2015, a clinician noted declining kidney function and instructed the Veteran to cut his Metformin dose to protect his kidneys. This was again noted on January 12,
range, this indicated kidney function slightly low; the clinician recommended that he discontinue NSAIDs to protect his renal functioning. Kidney function was again noted to be low on July 8, 2011. Kidney function tests were normal on January 20, 2012, and January 10, 2013. On November 29, 2013, a clinician noted that the elevated creatinine and reduced EDFR are consistent with reduced kidney function which may be related to diabetes. On February 2, 2015, a clinician noted declining kidney function and instructed the Veteran to cut his Metformin dose to protect his kidneys. This was again noted on January 12, 2016, and April 1, 2016. A May 16, 2016, treatment note lists a diagnosis of chronic kidney disease (CKD), indicating that the Veteran had stopped taking Metformin one month prior. This diagnosis was continued in VA treatment records thereafter, with a June 15, 2017, treatment note indicating that his kidneys continued to be chronically challenged, likely due to chronic obesity, diabetes, and high blood pressure.

Based on the foregoing, while there is some fluctuation in the Veteran's kidney functioning over time, as demonstrated by bloodwork and urine tests, the Board has resolved any reasonable doubt in favor of the Veteran and finds that his diabetic nephropathy first manifested on November 14, 2008, when it was first noted that he had protein in his urine (although he had normal kidney function tests at the time). Therefore, the correct effective date for the award of service connection for diabetic nephropathy is November 14, 2008, as the latter of the date of claim (July 14, 2004) and the date entitlement arose (November 14, 2008) controls. 38 C.F.R. § 3.156(c)(3).

The Board observes that the Veteran also had a history of kidney stones. However, a June 2023 VA examiner opined that although the Veteran had a history of bladder cancer and diabetic nephropathy, the kidney stones were unrelated and were a new, separate condition. Thus, the examiner opined it is less likely than not that the Veteran's kidney stones were due to his diabetic nephropathy and bladder cancer with residuals.

6. An effective date of November 29, 2020, for bladder cancer, in remission, is granted.

The appellant seeks an effective date prior to January 1, 2021, for the award of service connection for bladder cancer.

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 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 or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997).

In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination
but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3).

The Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicide agents, 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).

Specifically, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease. 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; or if there was a claim for benefits either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). 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). Certain additional exceptions are set forth that are not pertinent to this appeal.

Bladder cancer was added as a disease presumptively due to herbicide exposure on January 1, 2021. 38 U.S.C. § 1116(a)(2) was amended to include, in pertinent part, bladder cancer among the list of diseases eligible for presumptive service connection based on herbicide agent exposure for veterans exposed to herbicide agents.

In the instant case, the Veteran was granted service connection for bladder cancer on a presumptive basis based on exposure to herbicide agents during his service in Thailand. As such, he was a Nehmer class member. However, the Veteran was not denied compensation for bladder cancer between September 25, 1985, and May 3, 1989. Likewise, he did not have a claim for benefits pending before VA on May 3, 1989. However, VA did receive his original claim for service connection for bladder cancer between May 3, 1989, and January 1, 2021, the date on which the liberalizing law that added bladder cancer as a disease presumptively due to in-service exposure to herbicides became effective. As such, the effective date must be assigned pursuant to 38 C.F.R. § 3.816(c)(2).

The basic facts of this case are not in dispute. The Veteran filed his original claim for service connection for bladder cancer to include as due to in-service herbicide exposure on April 29, 2020. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, date stamped November 29, 2020. The appellant has not asserted, nor does the evidence show any intent on the part of the Veteran to apply for compensation for bladder cancer prior to November 29, 2020. In a January
in-service exposure to herbicides became effective. As such, the effective date must be assigned pursuant to 38 C.F.R. § 3.816(c)(2).

The basic facts of this case are not in dispute. The Veteran filed his original claim for service connection for bladder cancer to include as due to in-service herbicide exposure on April 29, 2020. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, date stamped November 29, 2020. The appellant has not asserted, nor does the evidence show any intent on the part of the Veteran to apply for compensation for bladder cancer prior to November 29, 2020. In a January 2022 rating decision, the AOJ granted service connection for bladder cancer on a presumptive basis due to herbicide exposure.

Here, the current effective date assigned was based on the date of claim upon which service connection was ultimately granted as well as consideration of 38 C.F.R. § 3.114. The AOJ noted that the effective date assigned was based on the effective date of the liberalizing law that allowed presumptive service connection for bladder cancer - January 1, 2021 - as the effective date under 38 C.F.R. § 3.114 could not be prior to the effective date of the liberalizing law. 38 C.F.R §§ 3.114, 3.400.

However, as previously noted, as bladder cancer is a disorder presumptively related to herbicide exposure, the Veteran was a Nehmer class member, and VA received his original claim for service connection for bladder cancer between May 3, 1989, and January 1, 2021, the effective date must be assigned pursuant to 38 C.F.R. § 3.816(c)(2). Under 38 C.F.R. § 3.816(c)(2), 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. Therefore, pursuant to Nehmer, the proper date of claim in this case is November 29, 2020.

The Board further finds that the date entitlement arose in this case is prior to the date of claim, as a February 19, 2019, VA radiology note indicates that a CT scan was performed for evaluation of a history of bladder cancer.

In sum, the medical evidence of record reflects that the Veteran was diagnosed with bladder cancer prior to the date of his original claim for service connection, and VA received the Veteran's original claim for service connection for bladder cancer between May 3, 1989, and January 1, 2021, on November 29, 2020. Therefore, the proper effective date is the date of receipt of the claim, as that is later than the date entitlement arose. Accordingly, the appropriate effective date for the award of service connection for bladder cancer is the date of the Veteran's initial claim, November 29, 2020. 38 C.F.R. § 3.816(c)(2).

(Continued on next page)

REASONS FOR REMAND

A remand of the following claims is necessary to correct a pre-decisional error in VA's duty to assist or to correct an error by the AOJ in satisfying a regulatory or statutory duty. 38 C.F.R. § 20.802(a).

1. Entitlement to a higher initial disability rating for type II diabetes mellitus with erectile dysfunction is remanded.

2. Entitlement to a higher initial disability rating for right lower extremity diabetic peripheral neuropathy (sciatic nerve) is remanded.

3. Entitlement to a higher initial disability rating for left lower extremity diabetic peripheral neuropathy (sciatic nerve) is remanded.

4. Entitlement to a higher initial disability rating for diabetic nephropathy is remanded.

5. Entitlement to a higher initial compensable disability rating for bladder cancer, in remission, is remanded.

Because Board has granted earlier effective dates for the award of service connection for type II diabetes mellitus with erectile dysfunction, right and left lower extremity diabatic peripheral neuropathy, diabetic nephropathy, and bladder cancer, the periods on appeal have expanded. The AOJ is to make a determination regarding the disability ratings assigned for the newly defined appeal periods in the first instance and thus preserve the Veteran's right to appeal. 38 U.S.C. § 7104(a).

6. Entitlement to an effective date earlier than June 30, 2011, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

7. Entitlement to an effective date earlier than June 30, 201
of service connection for type II diabetes mellitus with erectile dysfunction, right and left lower extremity diabatic peripheral neuropathy, diabetic nephropathy, and bladder cancer, the periods on appeal have expanded. The AOJ is to make a determination regarding the disability ratings assigned for the newly defined appeal periods in the first instance and thus preserve the Veteran's right to appeal. 38 U.S.C. § 7104(a).

7. Entitlement to an effective date earlier than June 30, 2011, for the award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded.

The appeal for earlier effective dates for a TDIU and DEA is inextricably intertwined with the initial disability rating claims being remanded, and, as such, must be remanded for adjudication by the AOJ.

The matters are REMANDED for the following action:

1. Based on the newly assigned effective dates for the award of service connection, adjudicate the appeal for higher initial disability ratings for the service-connected type II diabetes mellitus with erectile dysfunction, right and left lower extremity diabatic peripheral neuropathy, diabetic nephropathy, and bladder cancer.

2. After completion of the above, adjudicate the appeal for earlier effective dates for the award of a TDIU and DEA under 38 U.S.C. Chapter 35.

Cynthia M. Bruce

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board T. Sherrard, 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