DeLisio: Effective Dates of a Secondary Condition

Lawrence DeLisio v. Eric K. Shinseki, Opinion Number 09-0404, decided August 24, 2011 involved among other things a claim for service connection for diabetes and peripheral neuropathy (secondary to diabetes) as a result of exposure to pesticides under Nehmer. Specifically, the court had to “resolve the novel issue of whether a disability that is secondarily service-connected can have an effective date earlier than the date a claim was filed explicitly for the primary service-connected disability.” Id. at 1. The Court found that under these limited facts, it could.

The veteran served in Vietnam and in 1980 filed for service connection of “numbness in his left leg”, this claim was never adjudicated. He refilled in 1994 for peripheral neuropathy and this claim was not adjudicated in 2006 when he was diagnosed with diabetes and applied for service-connection for his diabetes.. Importantly, in 2001 diabetes was added to list of herbicide diseases presumptively associated with Agent Orange exposure by Vietnam veterans. Thus, the veteran became a Nehmer class member and potentially entitled to an effective date earlier than the date presumptive service connection for diabetes was authorized. The Board service connected and granted 1 year before the 2006 application.

The court found if (1) a claimant files a claim for benefits for a condition, (2) the case remains open and not finally adjudicated, and (3) the cause of that condition is determined to be a disease or disability incurred in or aggravated by service, then the effective date for both the secondary and primary service-connected disease or disability can be as early as the date of the open claim. Id. at 12.

The VA argued a veteran must file a claim explicitly for the causal or primary disease or disability to establish entitlement to a secondary condition. However, the court rejected the argument and noted the veteran friendly nature of the law and that the VA must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service-connection that are reasonably raised by the record. Id.at *10.

The court limited its decision by saying:

It is important to note that we do not hold that a claim for benefits reasonably encompasses a claim for unclaimed disabilities that are not a cause of the condition for which benefits are sought, or for unclaimed benefits that arise as a result of the condition for which benefits are sought…. Rather, we hold that, when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally just investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.

Thus, the court remanded to the Board whether the claim’s effective date for both the peripheral neuropathy and diabetes mellitus should be 2006, 1994, or 1980.

Decided by Chief Judge Kasold, and Judges Hagel and Lance.