Citation Nr: 18160456
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 18-43 900
DATE:	December 26, 2018
ORDER
Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for non-Hodgkins lymphoma of the stomach, is denied.
Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for bladder cancer, is denied.
Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for partial gastrectomy associated with service-connected non-Hodgkins lymphoma of the stomach, is denied.
Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for scar of the abdomen associated with service-connected non-Hodgkins lymphoma of the stomach, is denied.
Entitlement to an effective date earlier than March 14, 2017, for service connection for splenectomy associated with service-connected non-Hodgkins lymphoma of the stomach, is denied.

REMANDED
Entitlement to an initial disability rating greater than 20 percent for service-connected partial gastrectomy is remanded.

FINDINGS OF FACT
1.  The earliest effective date for the award of service connection for non-Hodgkins lymphoma of the stomach is March 14, 2017, the date the laws and regulations authorized presumptive service connection.
2.  The earliest effective date for the award of service connection for bladder cancer is March 14, 2017, the date the laws and regulations authorized presumptive service connection.
3.  The earliest effective date for the award of service connection for partial gastrectomy associated with service-connected non-Hodgkins lymphoma of the stomach is March 14, 2017, the laws and regulations authorized presumptive service connection.
4.  The earliest effective date for the award of service connection for scar of the abdomen associated with service-connected non-Hodgkins lymphoma of the stomach is March 14, 2017, the laws and regulations authorized presumptive service connection.
5.  The earliest effective date for the award of service connection for splenectomy associated with service-connected non-Hodgkins lymphoma of the stomach is March 14, 2017, the laws and regulations authorized presumptive service connection.
CONCLUSIONS OF LAW
1.  The criteria for an effective date earlier than March 14, 2017, for the award of service connection for non-Hodgkins lymphoma of the stomach, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
2.  The criteria for an effective date earlier than March 14, 2017, for the award of service connection for bladder cancer have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
3.  The criteria for an effective date earlier than March 14, 2017, for the award of service connection for partial gastrectomy associated with service-connected non-Hodgkins lymphoma of the stomach, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
4. The criteria for an effective date earlier than March 14, 2017, for the award of service connection for scar of the abdomen associated with service-connected non-Hodgkins lymphoma of the stomach, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400. 
5.  The criteria for an effective date earlier than March 14, 2017, for the award of service connection for splenectomy associated with service-connected non-Hodgkins lymphoma of the stomach, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from June 1957 to December 1960.
Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for non-Hodgkins lymphoma of the stomach, bladder cancer, partial gastrectomy, scar of the abdomen, and splenectomy.
The effective date of an evaluation and grant of compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim.  See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service.  38 U.S.C. § 5110(b)(1).  The effective date of an award for presumptive service connection is the date of receipt of claim, or date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(ii). 
A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p).  “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA.  See 38 C.F.R. § 3.1(r).
Any documented communication from, or action by, a Veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim.  See 38 C.F.R. § 3.155(b).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 
Additionally, 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).  Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement.  These provisions apply to original and reopened claims, as well as claims for increase.  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 at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the Veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law.  38 C.F.R. § 3.114(a)(3).
The Veteran is seeking an effective date earlier than March 14, 2017 for service connection for non-Hodgkins lymphoma of the stomach, bladder cancer, partial gastrectomy, scar of the abdomen, and splenectomy.  The record reflects that the Veteran’s claim for service connection was received by VA on August 17, 2010.  Service connection was initially denied by the VA Regional Office (RO) in May 2012 as the preponderance of the evidence had shown that the claimed conditions were not related to active service, specifically, due to contaminated water at Camp Lejeune.  In this regard, service treatment records had been silent regarding treatment for or diagnoses of the asserted conditions; and a March 2012 VA examination report had concluded that the claimed conditions were not at least as likely as not caused by active service.  A study by the National Academy of Science published in 2009 was also cited, noting that it could not be determined reliably whether diseases and disorders experienced by former residents and workers of Camp Lejeune were associated with exposure to contaminants in the water supply.
Thereafter, a December 2013 VA examination report showed that exposure to the types of toxins found in the water at Camp Lejeune were not noted to be common risk factors for the development of non-Hodgkin’s lymphoma. 
A private medical record from T. Buroker, D.O., dated in December 2014, had suggested that the Veteran’s service at Camp Lejeune from September 1958 to March 1959 had exposed him to contaminated water that was more likely than not the reason for the occurrence of non-Hodgkin’s lymphoma of the stomach and bladder neoplasm. 
In February 2015, the Board determined that two VA physicians had found the asserted conditions unrelated to active service and that Dr. Buroker had provided a favorable opinion.  The Board, however, concluded that Dr. Buroker’s opinion was not supported by a rationale, therefore, additional development was requested.
A VA examination report dated in November 2015 again concluded that the claimed conditions were less likely than not incurred in or caused by service.  The examiner explained that the Veteran had a 30-year history of smoking, and that the etiology of small cell lymphoma was unknown, though advancing age, immunosuppression, high dose radiation exposure, autoimmune diseases, family history, and certain viral infections were established risk factors.  Tobacco use was said to have only been associated with certain subtypes of non-Hodgkin’s lymphoma, and the literature was silent regarding the Veteran’s particular type of non-Hodgkin’s lymphoma and smoking.  Current review of the medical literature was said to have shown that the majority of studies did not support exposure to the contaminants in the water at Camp Lejeune as causal for the development of non-Hodgkin’s lymphoma.
Because non-Hodgkin’s lymphoma of the stomach had not been found to be directly related to active service, service connection on a direct basis could not be established.  The evidence of record also failed to show that non-Hodgkin’s lymphoma had manifested to a compensable degree within one year of separation service.
During the appeal period, 38 C.F.R. § 3.309(f) was amended to provide a presumption of service connection for non-Hodgkin’s lymphoma and bladder cancer for Veterans stationed at Camp Lejeune between August 1, 1953, and December 31, 1987.  The regulation was effective as of March 14, 2017.  Based on this liberalizing law, the RO granted service connection for non-Hodgkin’s lymphoma and bladder cancer, assigning an effective date of March 14, 2017.
In applying the law to the facts of this case, the Board finds that the appropriate effective date for the grant of service connection for non-Hodgkins lymphoma of the stomach, bladder cancer, partial gastrectomy, scar of the abdomen, and splenectomy is March 14, 2017, the date presumptive service connection was authorized by law and regulation.  As previously noted, the effective date for presumptive conditions manifesting more than one year after discharge from service is either the date the claim was received or the date entitlement arose, whichever comes later.  Here, VA received the Veteran’s service connection claim in August 2010.  The date entitlement arose, however, has been interpreted as the date on which the claimant met the requirements for the benefits sought.  This is determined on a “facts found” basis.  See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  The date entitlement arose, however, is not the date that the RO receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.  In this instance, the date that entitlement arose for the Veteran’s asserted disabilities is March 14, 2017, the date the laws and regulations authorized presumptive service connection as direct service connection had not been established.
The Board’s actions are bound by the applicable law and regulations as written and has no power to grant benefits not authorized by law.  38 U.S.C. § 7104(c).  Thus, the Board cannot assign an effective date earlier than March 14, 2017, for presumptive service connection for non-Hodgkins lymphoma of the stomach and bladder cancer, along with the associated partial gastrectomy, scar of the abdomen, and splenectomy, when the law did not authorize such a benefit.  Thus, the claims must be denied.
REASONS FOR REMAND
Entitlement an initial disability rating greater than 20 percent for service-connected partial gastrectomy.
The Veteran asserts that the symptoms associated with his service-connected partial gastrectomy are more disabling than reflected by the currently assigned 20 percent disability rating.  In his September 2018 Appeal To Board Of Veterans’ Appeals (VA Form 9), he described that his disability now required the constant use of antacids.  The Veteran has not undergone a recent dedicated VA examination to assess the nature and extent of the service-connected disability.  As such, the Board finds that such examination is required.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995).
The matter is REMANDED for the following action:
Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of partial gastrectomy.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to the residuals of partial gastrectomy alone and discuss the effect of the disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Orfanoudis, Counsel 

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