Lawrence Delisio v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 1801
| Vet. App. | 2011Background
- DeLisio, a Vietnam veteran, challenges a 2008 Board decision denying earlier effective dates for diabetes and peripheral neuropathy and denying higher back-disability ratings; appeal proceeds after a panel clarified whether secondary service connection could yield an earlier effective date under Nehmer and liberalizing regulations.
- Nehmer class status and May 2001 addition of diabetes to Agent Orange presumptions opened potential earlier dates; diabetes could be service-connected earlier than the explicit diabetes claim date if related claims remained open.
- Historical claims include an October 31, 1980 request related to Agent Orange with left-leg numbness, a January 1994 peripheral neuropathy claim, and a June 5, 2006 explicit diabetes claim; diabetes later tied to peripheral neuropathy as a secondary condition.
- The Board found diabetes presumptively service-connected with an effective date June 5, 2006, and assigned 20% for diabetes and 10% for peripheral neuropathy (both effective June 5, 2006); Nehmer implications allowed potential earlier dates, and the neuropathy was treated as secondary to diabetes.
- The court remands for further adjudication on diabetes and neuropathy dates, and holds that the Board’s reasoning for the 1983–1988 and later low-back ratings requires further explanation and possible reanalysis, with remand to consider TDIU/extraschedular avenues.
- The decision also discusses whether October 31, 1980, claim remained pending, whether January 1994 claim encompassed diabetes, and whether the October 1980 claim could yield earlier effective dates for related conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can diabetes and neuropathy have earlier effective dates under Nehmer? | DeLisio argues for earlier dates based on open claims (1980/1994) that encompassed diabetes via secondary theories. | Secretary contends dates align with explicit diabetes claim June 5, 2006; no earlier date allowed for secondary claims absent specific legal exceptions. | Remanded for factual and legal determination of earlier dates. |
| Did January 1994 neuropathy claim reasonably encompass diabetes for an earlier diabetes effective date? | January 1994 neuropathy claim remained open and later evidence tied neuropathy to diabetes; thus diabetes could relate back to 1994. | Diabetes presumptions apply only from liberalizing law dates; no automatic earlier date through the neuropathy claim. | Remanded; the scope supports an earlier diabetes date than 2006. |
| Did October 31, 1980 Agent Orange claim remain pending and potentially encompass diabetes or neuropathy? | Left-leg numbness/neuropathy/diabetes could be encompassed by the 1980 claim if pending and related to service. | October 31, 1980 claim either was exhausted, withdrawn, or final; not pending for these issues. | Remanded to resolve pending status and scope; potential earlier effective dates if encompassed. |
| What is the proper effective date for the low-back disability given final 2000 and related remand proceedings? | Advocates earlier than April 18, 1983 may be warranted; seeks higher ratings and earlier dates. | Believes April 18, 1983 is correct; prior date was withdrawn and final. | Affirmed as to earlier dates for back disability, but remanded for rating considerations and potential extraschedular/TDIU analysis. |
| Should the Board provide a clearer basis for potential extraschedular or TDIU rating from November 18, 1988 for the back disability? | The Board inadequately addressed possible extraschedular or TDIU grounds for 60% from November 1988. | Record supports schedular limits; no explicit TDIU rationale found. | Remanded for adequate reasons and bases on this issue. |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet.App. 1 (2009) (claim scope may cover conditions not explicitly diagnosed)
- Brokowski v. Shinseki, 23 Vet.App. 79 (2009) (scope of claims may be broader than precise diagnosis)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competence of lay witnesses to diagnose medical conditions)
- Kent v. Nicholson, 20 Vet.App. 1 (2006) (claims may include theories reasonably raised by the record)
- Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008) (consistency of 3.400 with 5110; effective-date framework)
- Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc on effective-date principles and remedial interpretation)
- McGrath v. Gober, 14 Vet.App. 27 (2000) (date of manifestation vs. date of application for effective date)
- Schroeder v. West, 212 F.3d 1265 (Fed.Cir. 2000) (duty to assist may involve secondary theories when reasonably raised)
- Robinson v. Peake, 21 Vet.App. 545 (2008) (duty to assist in developing all reasonably raised theories)