Citation NR: 9622751 Decision Date: 08/08/96 Archive Date: 08/16/96 DOCKET NO. 89-07 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date earlier than May 1, 1988, for the award of compensation benefits for multiple myeloma. 2. Entitlement to an increased evaluation for multiple myeloma, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from January 1946 to June 1947, and from August 1950 to August 1953. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from rating decisions issued by the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (VARO). The Board remanded this case in February 1990, April 1991, and again in September 1992. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is totally disabled as a result of his service-connected multiple myeloma. Further, he contends that he should be assigned an earlier effective date for the payment of compensation benefits for his multiple myeloma. He contends that his award should be made effective from the date of his original claim for the disability, July 8, 1982, since the medical evidence submitted in conjunction with his original claim, which was reviewed and considered by VARO in an August 1982 rating decision, established that he was diagnosed with multiple myeloma in June 1981. Accordingly, he believes that the grant of presumptive service connection for this disease by rating action in September 1988, pursuant to the Radiation- Exposed Veterans Compensation Act of 1988, Public Law 100- 321, should be effective from the date of receipt of his original claim when he was disabled with the multiple myeloma. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran’s claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for an earlier effective date for the assignment of compensation for multiple myeloma. However, pursuant to revised schedular criteria, the appellant is entitled to a total (100 percent) disability rating for his multiple myeloma. FINDINGS OF FACT 1. The appellant was clinically found to have multiple myeloma in June 1981. On recent VA examination in August 1994, it was noted that his multiple myeloma was chronic as manifested by acute bodily and joint pain, requiring him to take Percodan. 2. By final rule in June 1989, 38 C.F.R. § 3.309(d) was amended to allow service connection on a presumptive basis for veterans who were exposed to radiation in service and developed one of the specified diseases listed thereunder, including multiple myeloma. 3. The effective date of the enabling legislation, the Radiation-Exposed Veterans Compensation Act of 1988, Public Law No. 100-321 as codified at 38 C.F.R. § 3.309(d), was May 1, 1988. 4. VARO awarded presumptive service connection for multiple myeloma pursuant to 38 C.F.R. § 3.309(d) by rating action in September 1988. The assigned effective date of service connection for his multiple myeloma was May 1, 1988. 5. The appellant’s multiple myeloma is totally disabling pursuant to schedular criteria. CONCLUSIONS OF LAW 1. The effective date for an award of disability compensation for multiple myeloma is May 1, 1988. 38 U.S.C.A. § 5110(g) (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.114(a), 3.309(d), 3.400 (1995). 2. The appellant’s service-connected multiple myeloma warrants a 100 percent schedular disability evaluation. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7709, as amended, effective September 25, 1995 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). This finding is based on his contentions regarding the increased severity of his service-connected multiple myeloma. See Proscelle v. Derwinski, 2 Vet.App. 629 (1992). I. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application therefor. 38 U.S.C.A. § 5110(a) (West 1991 & Supp. 1995). This statutory provision is further defined by regulation which provides that the effective date for compensation will be the date of the receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1995). Where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more that one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g) (West 1991 & Supp. 1995). This statutory provision is further defined by regulation which provides that where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. In order to be eligible for a retroactive payment under the provisions of this paragraph 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. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114(a) (1995). The Radiation-Exposed Veterans Compensation Act of 1988, Public Law No. 100-321, 102 Stat. 485, codified at 38 U.S.C. § 1112(c) and implemented by 38 C.F.R. § 3.309(d), provided under subsection (1) a presumption of service connection on a radiation basis for specified diseases becoming manifest within the presumptive period in a “radiation-exposed veteran.” Multiple myeloma was included as one of the specified diseases listed in Public Law 100-321. In June 1989, the VA published final rules implementing 38 C.F.R. § 3.309(d), also effective from May 1, 1988. See 54 FR 26027, June 21, 1989. The evidentiary record reveals that the appellant first applied for service connection for multiple myeloma July 1982. As indicated above, the medical evidence then of record established a diagnosis of this disease in June 1981. This fact is not in dispute. A rating decision by VARO in August 1982, denied service connection for multiple myeloma and this decision was upheld by the Board in September 1983. Thereafter, the appellant repeatedly attempted to reopen his claim for these benefits, resulting in denials of his claim by VARO and the Board on the basis of failure to submit new and material evidence. However, following the passage of Public Law 100-321, the appellant’s claim was reopened and by rating action in September 1988, VARO awarded presumptive service connection for multiple myeloma pursuant to 38 C.F.R. § 3.309(d). VARO based that decision on a finding he had multiple myeloma as a result of in-service exposure to radiation, which therefore established service connection under Public Law 100-321. The rating decision stated that the presumption of service connection applied since the appellant had been verified to have participated in a radiation risk activity and that his multiple myeloma had manifest itself to a degree of at least ten percent within a forty year period after the radiation risk activity participation. The assigned effective date of service connection for his multiple myeloma was May 1, 1988, the effective date of the pertinent statute. The appellant contends that he should be assigned an effective date earlier than May 1, 1988, for the grant of service connection for multiple myeloma. It is essentially asserted that the provisions under Public Law 100-321 were to be made retroactive, and as such, he should be service- connected from the date he originally applied for these benefits since the medical evidence established a diagnosis of multiple myeloma in June 1981. However, for the reasons discussed below, the Board is unable to assign an effective date earlier than May 1, 1988. Effective dates are, in general, assigned based on the date of the receipt of a claim, or the date the entitlement arose. However, as noted above, the legal basis for service connection for multiple myeloma was the final rulemaking, amending 38 C.F.R. by adding § 3.309(d) in June 1989. Until this regulation was finalized, there was no legal basis for granting presumptive service connection based on radiation exposure for this disease. The liberalizing VA law and regulation were made effective as of May 1, 1988. Where there is a liberalizing VA issue, there are different criteria which may be used in some cases for assigning effective dates. There are provisions for a retroactively assigned effective date of one year prior to the filing of the claim, but not earlier than the effective date of the liberalizing issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. However, this provision is only factually applicable in cases where a veteran filed a claim for a disability at some point in time after passage of the liberalizing law and where entitlement can be shown from the effective date of the change or liberalization. 38 C.F.R. § 3.114(a). In such cases, the veteran is entitled to a maximum one-year retroactive effective date measured from the date of receipt of his claim. Obviously, the intent of this retroactive provision is to compensate a veteran who might have been unaware or less diligent in filing a claim for a benefit that he was otherwise entitled to by enactment of liberalizing legislation. As to the facts in this case, however, this retroactive provision is not relevant since the appellant was awarded service connection for multiple myeloma under Public Law 100-321 effective from the date of enactment of that law, May 1, 1988. This effective date is the earliest possible date that can be assigned under the law and regulations since legal entitlement for his disability was not available until that date. Compare McCay v. Brown, No. 94-881 (U. S. Vet.App. June 12, 1996) (veteran granted retroactive one year effective date from receipt of his May 1990 application for service-connected benefits awarded under the Agent Orange Act of 1991, that was implemented by regulations made effective (September 1985) a number of years prior to receipt of the claim). The Board is bound by the regulations of the Department. 38 U.S.C.A. § 7104(c) (West 1991). As such, we have no legal authority to assign an effective date for presumptive service connection for multiple myeloma under Public Law 100-321 and its implementing regulation, 38 C.F.R. § 3.309(d), any earlier than the date entitlement to this benefit became available, May 1, 1988, the effective date of the liberalizing legislation. Accordingly, the appeal as to this issue must fail. II. Increased Disability Evaluation The Board notes that while this appeal was pending, the applicable rating criteria for multiple myeloma, rated analogous to Hodgkin’s disease pursuant to 38 C.F.R. § 4.20 under diagnostic code 7709, 38 C.F.R. § 4.117, was amended, effective September 25, 1995. The amended rating criteria under code 7709 now provides a single rating of 100 percent for Hodgkin’s disease and analogous diseases like multiple myeloma where the evidence reflects an active disease process or while the disease is in a treatment phase. The most recent medical evidence of record reflects that the appellant’s multiple myeloma is an active disease causing acute bodily and joint pain and requiring him to take Percodan. See Report of VA examination, dated August 17, 1994 (appellant diagnosed with chronic multiple myeloma). Accordingly, a 100 percent schedular disability rating is assigned pursuant to the above-cited amended rating criteria. It is noted that a claim for a total rating on the basis of individual unemployability was raised and considered below, but was not made part of this appeal. However, in view of above, the Board concludes that this claim has been rendered moot. A claim filed under 38 C.F.R. 4.16(a) for a total disability rating is for application only when the schedular rating is less than total (100 percent). Hence, it is clear that the grant of a schedular total rating obviates consideration for the same under Section 4.16(a). See Walker v. Brown, 8 Vet.App. 356 (1995) (in statutory interpretation, if the plain meaning of a statute or regulation is discernible, that plain meaning must be given effect). ORDER An effective date earlier than May 1, 1988, for the award of disability compensation for multiple myeloma is denied. An increased disability evaluation to 100 percent for multiple myeloma is granted. KENNETH R. ANDREWS, JR. Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. - 2 -