Citation Nr: 1329025 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 08-36 362 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than October 14, 2004, for the award of service connection for chronic lymphocytic leukemia (CLL). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to March 1971. This appeal to the Board of Veterans' Appeals (Board) arose from A January 2007 decision by the VA Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania mandated by the litigation provisions in the Nehmer v. United States Veterans Administration line of cases. The Veteran filed a notice of disagreement in January 2008. The RO issued a statement of the case (SOC) in September 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2008. Following further development and the receipt of additional evidence, the RO continued to deny the claim as reflected in a February 2012 supplemental SOC (SSOC). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Although not conclusive, medical evidence suggests that the criteria for service connection for CLL were met continuously from October 16, 2003, the date that CLL was, due to a liberalizing law, recognized as being related to Agent Orange exposure for the purpose of entitlement to presumptive service connection on the basis of exposure to herbicides, to the October 14, 2004, date of claim. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an effective date of October 16, 2003, for an award of service connection for CLL are met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.114, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claim on appeal, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis Generally, the effective date for an award of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. With respect to the assignment of effective dates for awards of service connection for diseases presumed to have been caused by herbicide exposure, a limited exception to the statutory provisions governing the assignment of effective dates was created by the Nehmer line of cases: the final Stipulation and Order in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); the specific guidance describing the Stipulation and Order setting forth VA's ongoing responsibilities for further rulemaking and disability payments to class members provided in Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); the class action Order in Nehmer v. United States Veterans Administration, No. CV-86-6160 TEH (N.D. Cal., Dec. 12, 2000), and Nehmer et. al. v. Veterans Administration of the Government of the United States, 284 F. 3d 1158 (9th Cir. 2002) (Nehmer III). In August 2003, VA published regulations to implement these orders. A Nehmer class member is defined as a Veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). [Although CLL is not currently included in the covered herbicide diseases listed in 38 C.F.R. § 3.816, the U.S. District Court for the Northern District of California, the court with continuing jurisdiction of the Nehmer case, issued a Clarification Order in April 2006 that directed VA to readjudicate all class members currently in receipt of compensation for CLL. In short, even though CLL was not included in 38 C.F.R. § 3.816 as a covered disease, the District Court's order requires that VA apply the regulation as if it were. That order applies to the Veteran's case.] If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and [the date the disease at issue was added to the list of diseases presumed to be have been incurred as a result of exposure to herbicides], the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. 38 C.F.R. § 3.816(c)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA [on the date the disease at issue was added to the list of diseases presumed to be have been incurred as a result of exposure to herbicides], or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). If the requirements of (c)(1) or (c)(2) are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114, 3.400. 38 C.F.R. § 3.816(c)(4). 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. Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant 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. 38 C.F.R. § 3.114(a). If a claim is reviewed at the request of the claimant within one year from the effective date of the liberalizing law or VA issue, benefits may be authorized from the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a)(1). Effective October 16, 2003, CLL was-by way of liberalizing law-added to the list of diseases under 38 C.F.R. § 3.309(e) presumed to have been incurred in service if a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service even is if there is no record of such disease during service. See 68 Fed. Reg. 59540 (October 16, 2003). Following the enactment of this liberalizing legislation, the Veteran (via a phone call), filed a claim for service connection for CLL on October 14, 2004, which was within one year of the liberalizing law at issue. In a December 2004 rating decision, the RO granted service connection for CLL; the award was made effective from October 14, 2004, the date of receipt of the Veteran's claim. Thereafter, the ROIC, pursuant to the directives of the U.S. District Court for the Northern District of California with respect to the Nehmer litigation as set forth above, conducted a review of the Veteran's file to determine if an earlier effective date for the grant of service connection for CLL could be assigned. See January 2007 rating decision on appeal. This decision found that because the Veteran was not diagnosed with CLL, or a claim service connection for this condition filed, until after October 16, 2003, the date CLL was added to this list of disabilities presumed to have been caused by Agent Orange, an earlier effective date than October 14, 2004, for service connection for CLL could not be granted. First addressing whether an earlier effective date my be assigned under the special provisions codified at 38 C.F.R. § 3.816 pursuant to the Nehmer litigation, as the Board's review of the record does not reveal that a claim for service connection for CLL was filed or denied prior to October 16, 2003, the date CLL was added to list of diseases presumed to be caused by Agent Orange, the retroactive provisions of 38 C.F.R. § 3.816 are not applicable to this case. Because the claim for service connection for CLL was filed within one year of the effective date of the liberalizing law at issue, the Board has also considered whether an earlier effective date of October 16, 2003, may be assigned under 38 C.F.R. § 3.114(a)(1). Such an earlier effective date would be possible if, from October 16, 2003, to the date of claim of October 14, 2004, the Veteran continuously suffered from CLL. In this regard, the Veteran contends that such is the case, as he asserts that he was diagnosed with CLL prior to October 14, 2004. See January 2008 notice of disagreement. As support for this assertion, he noted that laboratory studies from January 8, 2002, showed a high white blood cell count, an indicator for the condition at issue. See id. He also asserted in his substantive appeal that his while blood cell count was high "for years," thus demonstrating that he had CLL "long before I was told." See November 2008 substantive appeal. Review of the medical evidence of record includes clinical evidence that is suggestive, if not fully demonstrative, of the diagnosis of, CLL prior to October 2003. In this regard, March and July 2003 VA outpatient treatment report reflect leukocytosis. Moreover, a March 31, 2003, VA outpatient treatment report contains results from VA laboratory studies conducted on January 8, 2002 that reflect an elevated white blood cell count as referenced by the Veteran, as well as additional laboratory studies referencing elevated while blood cell counts later in January 2002 and March 2002. In fact, the white blood cell count shown on laboratory testing on July 26, 2004 (13.7), the date of a VA clinical report that first reflected the diagnosis of CLL [and the date the ROIC in its December 2004 rating decision granting service connection for the condition found was the first recorded diagnosis of CLL] was lower than that recorded March 20, 2003 (17) and January 25, 2002 (14.5). The Board points out that, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other material point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). See also 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran's favor on the question of when entitlement to the benefits awarded arose, the Board finds that the Veteran met the criteria for service connection for CLL from the time of the effective date of the liberalizing regulation of October 16, 2003, to the date he filed his claim for service connection for this disability on October 14, 2004. As such, an earlier effective date for the award of service connection for CLL of October 16, 2003, pursuant to 38 C.F.R. § 3.114(a)(1), is warranted. The Board further notes, however, to whatever extent the Veteran contends that an effective date earlier than October 16, 2003, may be assigned for the award of service connection for CLL (to include , as stated in his January 2008 NOD, on the basis, that the "real beginning" of his CLL was a night in July 1970 while serving in Vietnam that CLL "entered my body" as a result of being in close proximity to soldiers who came in from the jungle and "smelled of chemicals") entitlement to an effective date earlier than the effective date of the liberalizing law adding CLL to the list of diseases presumed to be related to Agent Orange of October 16, 2003, may not be assigned under the controlling legal authority. See 38 C.F.R. § 3.114(a). Consequently, any assertions of entitlement to an effective date earlier than October 16, 2003 simply are without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date of October 16, 2003, for the award of service connection for CLL is granted, subject to the legal authority governing the payment of compensation benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs