Citation Nr: 1108046 Decision Date: 03/01/11 Archive Date: 03/09/11 DOCKET NO. 08-26 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than November 14, 2003, for the assignment of service connection and compensation for metastatic melanoma, for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1953 to March 1955. He died in September 2006, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of April 2007, which granted service connection for metastatic melanoma to the bone, left hip, and spine, with a 100 percent rating effective November 14, 2003, for accrued purposes. In May 2010, the appellant appeared at a Board hearing held at the RO (i.e., Travel Board hearing). FINDINGS OF FACT 1. In an unappealed December 1999 decision, the Board denied a claim of entitlement to service connection for residuals of melanoma, at that time, of the left fifth toe, status post amputation. 2. On November 27, 2001, a new claim for service connection for melanoma was received. 3. Based on a May 8, 2003, report from the National Research Council (NRC), VA elected to reconsider the Veteran's claim of entitlement to service connection for malignant melanoma. 4. Before a decision was reached on the Veteran's claim, he died in September 2006. 5. In a posthumous rating decision dated in April 2007, the RO granted service connection for metastatic melanoma to the bone, left hip, and spine, with a 100 percent rating effective November 14, 2003, for accrued purposes. 6. Evidence of record at the time of the Veteran's death did not show scars, disfigurement, constitutional symptoms, or physical impairment, due to metastatic malignant melanoma, from November 2001 to November 2003. 7. Evidence of record at the time of the Veteran's death did not show active metastatic cancer, systemic chemotherapy, or radiation treatment from November 2001 to November 2003. CONCLUSION OF LAW The criteria for an effective date prior to November 24, 2003, for the grant of service connection for malignant melanoma or metastatic malignant melanoma have been not been met, for accrued purposes. 38 U.S.C.A. §§ 5108, 5110, 5121 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.156, 3.400, 3.1000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The Federal Circuit, however, held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by a RO for a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if the facts are not in dispute, and resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003) ("Where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision."). Since accrued benefits claims must be based on evidence in the file at the date of death, the duty to assist in an accrued benefits claim is limited to obtaining evidence already constructively in VA's possession, and to obtaining evidence of the appellant's standing to pursue the claim, if not already of record, neither of which was indicated in this case. See 38 C.F.R. § 3.1000(c) (2006). There is no evidence of relevant evidence in VA's possession, but not in the claims file (i.e., constructive possession). Thus, the Board finds that no additional notification or development is required, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Accrued benefits According to the death certificate, the Veteran died in September 2006, at the age of 74 years, of malignant melanoma. At the time of his death, service connection was not in effect for any disabilities. During the Veteran's lifetime, he filed a claim of service connection for melanoma in June 1996. His claim was denied, and in a decision dated in December 1999, the Board denied service connection for amputation 5th toe, left foot, status post malignant melanoma, Clark's level IV, as a result of exposure to ionizing radiation. The Board found that the appellant participated in Operation CASTLE and was exposed to a probable dose of 1.3 rem gamma with an upper bound of 2.0 rem gamma, a skin dose of 5.8 rem to the 5th left toe and a 50-year committed effective dose of 0.2 rem to the internal organs. He had virtually no potential for exposure to neutron radiation. Based on evidence including an opinion from the VA Chief Public Health and Environmental Hazards Officer, the Board concluded that status post Clark's level IV malignant melanoma of the 5th left toe was not caused by exposure to ionizing radiation from atmospheric testing in service. That decision is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2010). Subsequently, in a statement received November 27, 2001, the Veteran referred to medical records pertaining to his melanoma, which he stated would support his pending appeal for service connection for melanoma. He asked that the records be considered. The records he submitted at that time consisted of pathology reports dated in March 2001, which showed that a left inguinal lymph node excisional biopsy had disclosed a lymph node with metastatic epithelial neoplasm consistent with malignant melanoma. In addition, left inguinal node dissection was negative for tumor. In December 2003, the Veteran was notified that a May 8, 2003, National Research Council (NRC) review of reconstructed radiation doses from the Defense Threat Reduction Agency (DTRA) had shown that the DTRA may have underestimated the amount of radiation to which some veterans were exposed. The Veteran was informed that VA was reviewing his prior dose estimate. Subsequently, the RO developed the claim pursuant to new guidelines provided by Nuclear Test Personnel Review (NTPR) program. According to a November 2006 letter from the DTRA, the NTPR program had established conservative maximum whole body and skin doses utilizing scientific methods, technical calculations, and actual radiation level measurements from U.S. atmospheric nuclear test detonations. These values were much higher than previous radiation dose assessments, and provided maximum benefit of the doubt to each Veteran, and ensured that reported doses were not less than actual doses. The reported doses were based on worst-case parameters and assumptions, not all of which a Veteran may have encountered. It was thought that assigning these parameters and assumptions should adequately encompass any activities that each Veteran performed. Unfortunately, the Veteran died in September 2006, prior to the completion of development and a decision in his case. In an administrative decision dated in April 2007, the RO commented that the NTPR had determined that the maximum doses which each Veteran could have received during participation in U.S. atmospheric nuclear testing were not more than 18 rem of external gamma dose; 2 rem of external neutron dose; and total skin dose of 550 rem. This exceeded screening doses for melanomas developing 5 or more years after exposure, and, therefore, it was found that it was at least as likely as not that the Veteran's melanoma resulted from radiation exposure in service. Accordingly, in a rating decision dated in April 2007, service connection for the cause of the veteran's death was granted. Service connection for malignant melanoma, left fifth toe, status post amputation, was granted, effective May 8, 2003, for accrued purposes, with a noncompensable rating assigned. In addition, service connection for metastatic melanoma to the bone, left hip, and spine was granted, with a 100 percent rating effective November 14, 2003, for accrued purposes. The appellant appealed the effective date of this latter determination. Periodic monetary benefits to which a veteran was entitled at the time of death, under existing ratings or decisions, or based on evidence in the file at the date of death, and due and unpaid, shall upon the death of the veteran be paid to certain survivors including his surviving spouse. 38 U.S.C.A. § 5121(a) (West 2002 & Supp. 2010). Evidence in the file at date of death means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet.App. 353 (1993). The appellant contends that the effective date should be 1994, the date that the melanoma was originally diagnosed. Alternatively, she contends that the effective date for accrued benefits should be earlier than November 2003, because the Veteran had metastatic cancer from 2001 until his death. Unless specifically provided otherwise, the effective date of an award of compensation shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2) (emphasis added). Specifically, where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date the VA received the particular application for which the benefits were granted. Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The award can be made effective no earlier than the date of the new application. See 38 U.S.C.A. §§ 5110(a), (i), 5108; 38 C.F.R. §§ 3.156(c), 3.400(q), (r). Even if there is new evidence supporting an earlier disability date, a claimant cannot receive compensation for a time frame earlier than the application date of the claim to reopen. Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). There is an exception when the new and material evidence consists of service department records. See Vigil v. Peake, 22 Vet. App. 63 (2008); 38 C.F.R. §§ 3.400, 3.156(c). In this case, the Veteran's claim was the subject of a prior final Board denial in December 1999. The next claim was received in November 2001, but the evidence of record at the time of the Veteran's death did not show active cancer prior to November 2003. The Board must also consider whether the revised dosage estimations constitute new service department records. Under 38 C.F.R. § 3.156(c), when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. Service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). Service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim. 38 C.F.R. § 3.156(c)(2). The Board finds that an earlier effective date based on the receipt of service department records is not warranted. The new dose estimates may not be considered service department records under 38 C.F.R. § 3.156(c), because the dosage estimates did not exist at the time of the Board's final adjudication of the Veteran's claim in December 1999. See 38 C.F.R. § 3.156(c)(2). The new dose estimates resulted from a new methodology in estimating potential radiation exposure, based on recommendations by the NRC, a part of National Academy of Sciences, and not the Department of Defense. Significantly, no new factual information regarding the Veteran's exposure to radiation during Operation CASTLE was provided; rather, new calculations were derived based on worst-case parameters and assumptions. In this case, the Veteran's new claim was received in November 2001. The evidence on file at the date of the Veteran's death, however, showed only that metastatic carcinoma to a left inguinal node had been excised in March 2001. A computerized tomography (CT) scan of the abdomen in January 2003 revealed no evidence of metastatic disease. A report from a private physician noted that he had a history of malignant melanoma with questionable metastatic disease in the chest area, and that he had otherwise been doing very well. In March 2003, it was noted that he was doing very well overall with his malignant melanoma. Clinically he was stable, and had routine follow-ups with another physician. He was noted to be stable with his melanoma in August 2003 as well. A November 2003 bone scan showed findings consistent with metastatic disease to the lumbosacral spine; it was noted that at the previous bone scan of January 2003 showed no evidence that would suggest metastatic disease. A follow-up bone scan was recommended. The bone scan disclosed, in addition to the lumbosacral spine metastasis, possible metastases in the right gluteal region and in the 10th rib. A June 2005 statement from a radiation oncologist reported that the Veteran had first been presented with melanoma involving the left fifth toe in 1994 and underwent primary amputation. He did well until 2001 when he experienced a left groin recurrence and underwent a superficial inguinal lymph node dissection with the finding of one involved lymph node. He received postoperative Interferon therapy. He was found to have new, painful disease involving the left hip in November 2003, confirmed by biopsy. Other sites at that time included in the lumbosacral spine, and in the left ileum. He was started with therapy including palliative radiation and chemotherapy, but additional metastases were subsequently shown. The rating schedule for evaluating skin disabilities changed during the pendency of this appeal. Prior to the effective date of the new criteria, the veteran's skin disability must be evaluated under the criteria then in effect. VAOPGCPREC 3-2000 (Apr. 10, 2000) (65 Fed. Reg. 33,422 (2000)). Under the old criteria, in effect prior to August 30, 2002, malignant new growths of the skin are rated as scars, or on the basis of disfigurement, constitutional symptoms, or physical impairment. 38 C.F.R. § 4.118, Code 7818 (2002). From the effective date of the new criteria, the veteran is entitled to the application of whichever criteria, new or old, are most favorable to him. Id. Malignant melanoma is rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or rated on impairment of function. 38 C.F.R. § 4.118, Code 7833 (2010). A Note to DC 7833 provides that, if a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, X-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100-percent rating will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in rating based upon that or any subsequent examination will be subject to the provisions of 38 C.F.R. § 3.105(e). If there has been no local recurrence or metastasis, rating will then be made on residuals. If treatment is confined to the skin, the provisions for a 100 percent rating do not apply. 38 C.F.R. § 4.118 (2010). The Veteran's melanoma was found to have metastasized to the bone by November 2003. Under DC 5012, malignant new growths of bones will be assigned a 100 percent rating continued for one year following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. After the one year, if there has been no local recurrence or metastases, the rating will be made on residuals. 38 C.F.R. § 4.71a, DC 5012, and note. Unfortunately, the evidence of record at the time of the Veteran's death did not show any active cancer, metastatic disease, or functional limitations from November 2001, when the Veteran's new claim was received, to November 14, 2003, the effective date of the 100 percent rating. In this regard, the Veteran was reported to be asymptomatic during this period, based on evidence on file at the date of his death. Evidence which has been received since the death of the Veteran includes records of the Veteran's treatment in 2001. In March 2001, he had a left superficial inguinal lymph node dissection, and was found to have malignant melanoma. He was treated with Interferon until July 2001, which was before his November 2001 claim. Records from the Anderson Cancer Center received after the death of the Veteran show that in August 2002, the Veteran had been discovered to have metastatic disease to the thorax on a CT scan, although he did not undergo chemotherapy or radiation at that time, and was noted to be asymptomatic. According to a November 2003 note from the Orlando Orthopedic Center, he had been doing well until about 3 or 4 months earlier, when he began developing pain and progressive weakness in the left lower extremity. In November 2003, he was found to have widespread metastases. In sum, the evidence of record at the time of the Veteran's death showed that although he filed a new claim in November 2001, metastatic disease or recurrence after that was not shown until November 14, 2003. No other compensable symptoms were shown during that time period. Accordingly, an effective date earlier than November 14, 2003, must be denied. The doctrine of reasonable doubt is not for application here as this issue is resolved as a question of law with no dispute or controversy regarding the factual record. 38 U.S.C.A. § 5107(b) (West 2002). ORDER An effective date earlier than November 14, 2003, for the assignment of a compensable or total rating for malignant melanoma with metastases is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs