Citation Nr: 1730833	
Decision Date: 08/02/17    Archive Date: 08/11/17

DOCKET NO.  13-24 871A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana


THE ISSUE

Entitlement to an effective date earlier than January 27, 2010, for the award of service connection for chronic lymphocytic leukemia (CLL).


REPRESENTATION

Veteran represented by:	Barbara J. Cook, Attorney at Law


ATTORNEY FOR THE BOARD

J.A. Flynn, Counsel





INTRODUCTION

The Veteran served on active duty from July 1969 to July 1973, including service in the waters offshore the Republic of Vietnam (Vietnam), and from June 1976 to October 1982.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the VA RO granting service connection for CLL with an effective date of January 27, 2010.  In September 2015, the Board denied the Veteran's claim of entitlement to an earlier effective for the award of service connection for CLL.  The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In a December 2016 Memorandum Decision, the Court vacated the Board's September 2015 decision.


FINDING OF FACT

The Veteran filed an original claim of entitlement to service connection for CLL on November 21, 2003, and he was eligible for service connection as of that date.  


CONCLUSION OF LAW

The criteria for an effective date of November 21, 2003, but no earlier, for the award of service connection for CLL are met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.313 (2016); VAOGCPREC 5-94.


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has certain notice and assistance obligations to claimants.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  In the instant case, the Veteran was provided with all appropriate notification in May 2010, and he has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Furthermore, the Court's December 2016 Memorandum Decision did not identify any errors in VA's duty to notify the Veteran.  Thus, adjudication of the Veteran's claim at this time is warranted.

With respect to the duty to assist, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim.  There is no reasonable possibility that further assistance would aid in substantiating the claim.  The pertinent evidence of record includes statements from the Veteran, service medical records, VA treatment records, and private treatment records.  The Veteran has not indicated that relevant evidence exists that has not been associated with the claims folder.  All appropriate due process concerns have been satisfied.  38 C.F.R. § 3.103 (2016).  The Veteran has been afforded the opportunity to present evidence and argument in support of his claim, and he has retained the services of a representative.  Thus, the duties to notify and assist have been met, and the Board will proceed to a decision.

Earlier Effective Date

The Veteran argues that he is entitled to an effective date of November 21, 2003, for the award of service connection for CLL.

Turning to a review of the pertinent history in this case, non-Hodgkin's lymphoma (NHL) is presumptively related to service in Vietnam during the Vietnam War.  38 C.F.R. § 3.313.  The Board notes that while the regulation allowing this presumption was enacted in 1990, it had a retroactive effective date of August 5, 1964.  The decision to implement the regulation retroactively was "fully consistent with VA's longstanding policy to administer the law under a broad interpretation for the benefit of veterans and their dependents" and was intended to extend "as much latitude as possible to award retroactive benefits."  Claims Based on Service in Vietnam, 55 Fed. Reg. 43,123-01 (October 26, 1990).

In February 1994, VA's Office of General Counsel (OGC) issued a precedential opinion addressing the assignment of effective dates in the context of the retroactive implementation date of 38 C.F.R. § 3.313.  See "Effective Date of Service Connection for Non-Hodgkin's Lymphoma Under 38 C.F.R. § 3.313", VAOGCPREC 5-94.  OGC's opinion read as follows, in pertinent part:

An effective date for service connection of NHL under 38 C.F.R. § 3.313 may generally be based on the date of receipt by VA of an original claim for that benefit filed on or after August 5, 1964, regardless of whether the claim had previously been denied, if the claimant was otherwise eligible on the date of claim.  

On November 21, 2003, the Veteran filed his original claim of entitlement to service connection for CLL.  In August 2004, the RO denied the Veteran's claim, the Veteran appealed this decision, and in March 2009, the Board finally denied the Veteran's claim.  The Board found, in pertinent part, that presumptive service connection under 3.313 was not warranted because the regulation, at that time, applied to NHL, rather than CLL.

In an April 2009 Addendum Compensation and Pension Bulletin, VA acknowledged that NHL included various subcategories, including two low-grade lymphomas: small lymphocytic with plasmacytoid features and small lymphocytic.

On January 27, 2010, the Veteran filed a request to reopen his claim of entitlement to service connection for CLL.  

In a May 2011 Addendum Compensation and Pension Bulletin, VA indicated that CLL should be considered the same disease as NHL for the purpose of section 3.313.

A July 2012 rating decision granted service connection for CLL with an effective date of January 27, 2010, the date of the Veteran's petition to reopen his claim.  

The Veteran appealed the assigned effective date, arguing that, pursuant to VAOGCPREC 5-94, service connection for CLL should be effective the later of the date of diagnosis or the date of the original claim, "regardless of whether the claim had previously been denied, if the claimant was otherwise eligible on the date of claim."  VAOGCPREC 5-94.  Thus, the Veteran argues that he is entitled to service connection as of November 21, 2003, the date of his original claim of entitlement to service connection for CLL.

The Board's September 2015 decision disagreed, finding that VAOGCPREC 5-94 applied only to claims of entitlement to service connection filed between the 1964 effective date of 38 C.F.R. § 3.313 and the 1990 adoption of 38 C.F.R. § 3.313.  The Board concluded that VAOGCPREC 5-94 did not apply because the Veteran's original claim of entitlement to CLL was filed in 2003 and was finally denied by the Board in March 2009.  The Board then determined, using the legal standards applicable to the assignment of effective dates in the context of a petition to reopen a claim of entitlement to service connection, that an effective date earlier than January 27, 2010, was unwarranted.

The Veteran appealed the Board's denial to the Court, and in a December 2016 Memorandum Opinion, the Court vacated the Board's September 2015 denial, finding that VAOGCPREC 5-94 did not, in fact, specify a 1990 end date for applicable claims.  The Court further found that the Board's denial of an earlier effective date for the grant of service connection ran afoul of the justification of the retroactive effective date of 38 C.F.R. § 3.313, namely that the later development of "critical connecting evidence . . . should not . . . work to the disadvantage of those who had already suffered and presented claims the Government had therefore rejected."  

Turning to an analysis of the facts in this case, the Board finds that the Court has essentially directed the Board to apply the conclusion of VAOGCPREC 5-94 to the Veteran's claim.  The Board, therefore, will determine whether VAOGCPREC 5-94, rather than the provisions typically applying to the assignment of effective dates for service connection, provides for an effective date earlier than January 27, 2010.  The Board will point out, however, that in this case the Court is acting through the mechanism of a single-judge decision, and that therefore the Court's conclusion concerning the application of VAOPGCPREC 5-94 is not precedential, and is limited to the facts of this particular case. 

As noted above, VAOGCPREC 5-94 provides that the effective date of service connection may be based on VA's date of receipt of an original claim, regardless of whether the claim had previously been denied, if the claimant was otherwise eligible for service connection on the date of claim.  Therefore, disregarding the Board's March 2009 final denial of the Veteran's claim, the Board finds that the Veteran's original claim for benefits was filed on November 21, 2003.  

With the November 21, 2003 original date of claim established, the remaining question under VAOGCPREC 5-94 is whether the Veteran was eligible for service connection as of his November 21, 2003, date of claim.  At that time, while 38 C.F.R. § 3.313 provided for presumptive service connection for NHL, the regulation did not explicitly apply to CLL.  Instead, it was with the May 2011 Compensation and Pension Bulletin that VA recognized CLL as the same disease as NHL for the purpose of 38 C.F.R. § 3.313.  

If this May 2011 guidance represented a change in the law, then the provisions of 38 C.F.R. § 3.114 would govern the assignment of an effective date for service connection.  As the Board noted in its September 2015 decision, however, this May 2011 guidance is akin to an interpretative change, rather than a liberalizing law that triggers the applicability of 38 C.F.R. § 3.114.  See, e.g., Brown v. Nicholson, 21 Vet. App. 290, 295 (2005) (en banc) ("An interpretive rule merely represents the agency's reading of statutes and rules rather than an attempt to make new law or modify existing law."); Haas v. Peake, 525 F.3d 1168, 1196 (Fed. Cir. 2008) (holding that a M21-1 change was merely interpretive rather than substantive where VA clarified the test to use in determining whether a veteran had "service in the Republic of Vietnam").  

Therefore, the Board finds that the May 2011 guidance was not a liberalizing law, but it was instead a clarification of the nature of NHL and CLL.  Consistent with the justification of Section 3.313 to extend as much latitude as possible to award retroactive benefits, the Board finds that with a 1996 diagnosis of CLL preceding the Veteran's November 21, 2003, date of claim, and service in the waters offshore Vietnam, the Veteran was eligible for service connection as of his November 21, 2003, date of claim.  An effective date of November 21, 2003, for the award of service connection for CLL is granted.


ORDER

An effective date of November 21, 2003, but no earlier, for the award of service connection for CLL is granted, subject to the laws and regulations governing the award of monetary benefits.




____________________________________________
THOMAS H. O'SHAY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs