Citation Nr: 1801211	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-13 271	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1. Entitlement to an effective date earlier than June 12, 2012, for the grant of service connection for chloracne related to herbicide exposure.

2. Entitlement to service connection for throat cancer.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse




ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel


INTRODUCTION

The Veteran had active service from August 1969 to August 1971, to include in Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) from July and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In May 2016, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file.

In addition to the matters noted above, the Veteran has appealed the October 2016 assigned disability ratings for chloracne and facial scars. The electronic record indicates that the Agency of Original Jurisdiction (AOJ) is taking action on these issues. Although the matters are within the Board's jurisdiction, they have not been certified for appellate review and the Board will not undertake review of the matters at this time. If the matters are not resolved in the Veteran's favor, the RO will certify the matters to the Board, which will undertake appellate review of the RO's action. Manlincon v. West, 12 Vet. App. 238 (1999) (holding that the Board's jurisdiction is triggered by the timely filing of a notice of disagreement (NOD)); 38 C.F.R. § 19.35 (2017) (stating that certification is for administrative purposes only and does not confer or deprive the Board of jurisdiction over an issue).

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system.
The issue of service connection for throat cancer is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The Veteran filed a claim for entitlement to service connection for chloracne on June 12, 2012; the claim was ultimately granted, and the effective date of the award is set to this date of claim.


CONCLUSION OF LAW

Entitlement to an earlier effective date prior to June 12, 2012, for the award of service connection for chloracne have not been met. 38 U.S.C. § 5110; 38 C.F.R.  §§ 3.114, 3.400, 3.816.


REASONS AND BASES FOR FINDING AND CONCLUSION

Earlier Effective Date

The Veteran contends that the July 2013 notification letter, informing him of his grant of service connection for chloracne, noted that he filed a claim in February 2012, and that he is entitled to an earlier effective date.

Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 

However, 38 C.F.R. § 3.400 (b) is subject to two exceptions. First, if service connection is granted pursuant to a liberalizing law, the effective date of the award will be the date the liberalizing law is enacted, if the claim is received within one year after the date of enactment. If the claim is received greater than one year from the date of enactment, benefits may be authorized for a period of up to one year prior to the date of administrative determination of entitlement. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. Id. 

Chloracne was added as a presumptive disease related to service in the Republic of Vietnam in February 1991. However, the Veteran was not diagnosed with this disorder prior to the date the law was passed. He is not therefore entitled to an effective date of one year prior to the date of claim under 38 C.F.R. § 3.114. 

The second exception exists for awards based on presumptive service connection established under the Agent Orange Act of 1991. While the effective date of such an award can be made effective no earlier than the date VA issued the regulation authorizing the presumption, Federal Courts have created an exception to the generally applicable rules in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). These Court decisions, which were later codified in 38 C.F.R. 
 § 3.816, define a "Nehmer class member" to include a veteran who has, or died from, a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i), (b)(2)(i).

The relevant regulation, 38 C.F.R. § 3.816 , provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation for a covered herbicide disease. Specifically, if VA grants a claim for service connection for a covered herbicide disease, and a service connection claim for the same disorder was denied in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be (1) the date VA received the claim on which the prior denial was based or (2) the date the disability arose, whichever is later. If VA grants a claim for service connection for a covered herbicide disease, and had not been adjudicated by VA until after May 3, 1989, but before the date the regulation was amended, the effective date of the award will be (1) the date such claim was received by VA or (2) the date the disability arose, whichever is later. See 38 C.F.R. § 3.816.

In this case, the evidence demonstrates that the Veteran did not submit a claim for service connection for chloracne prior to June 12, 2012. Therefore, the July 2013 rating decision represents the first adjudication of the issue. As such, an earlier effective date is not warranted under the Nehmer regulations. 

As the Veteran did not submit the claim within one year of discharge from service, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

The claim for an earlier effective date is denied. The evidence indicates the RO received the Veteran's Application for Compensation and/or Pension (Form 21-526) for service connection for throat cancer on February 13, 2012. The application did not indicate any other disability. On June 12, 2012, the RO received a claim for presumptive service connection for chloracne due to Agent Orange exposure. The chloracne claim was granted in a July 2013 rating decision. As a matter of law, June 12, 2012, is the date of claim for entitlement to service connection for chloracne. It is the earliest possible effective date for service connection allowed by law in this case. See 38 C.F.R. § 3.400. 

The Veteran's argument is essentially grounded in equitable considerations. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429 (1992) [citing Office of Personnel Management  v. Richmond, 496 U.S. 414, 426 (1990)].

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to an effective date earlier than June 12, 2012, for the award of service connection for chloracne is denied.


REMAND

The Veteran's oncologist indicated in a July 2013 letter that the Veteran's service-connected chloracne may be a contributing factor to the Veteran's throat cancer. An addendum opinion is required to fully and fairly evaluate the Veteran's claim.

Accordingly, the case is REMANDED for the following action:

1. Request the Veteran identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record.

2. Obtain any outstanding VA medical records and associate them with the claims file.

3. Return the claims file to the August 2012 VA examiner and request she re-review the claims file and respond to the inquiries below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran's service-connected chloracne and his throat cancer. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered.

Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions:

(a) Are any of the Veteran's current diagnoses related to his throat cancer proximately due to or aggravated (e.g. worsened, and if so, to what degree) by any of the Veteran's service-connected disabilities? [i.e. chloracne, facial scars] 

(b) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time.

The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:

* November 2010 patient follow up note from Dr. S. Ropat, indicating the Veteran had "stage IV squamous cell carcinoma of the right oropharynx" that recurred and "required extensive surgery with pectoralis major myocutaneous flap reconstruction." 

* July 2013 patient update note from Dr. S. Ropat, indicating "it would be prudent to consider his military exposure to agent orange as a contributing factor of his oropharyngeal cancer[.]"

* Service connection is in effect for chloracne and facial disfigurement associated with chloracne.

A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. 

The examiner should schedule a new examination only if necessary to provide an adequate opinion.

THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT.

4. Then, review the VA examiner's report(s) to ensure that he or she adequately responded to the above instructions, including providing an adequate explanation in support of the requested opinions. If the report(s) is (are) deficient in this regard, return the case to the VA examiner for further review and discussion.

5. Following the review and any additional development deemed necessary, re-adjudicate the claim, with a view towards direct, SECONDARY, and AGGRAVATIONAL theories of entitlement. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication.

THE RO IS ADVISED THAT IT SHOULD TAKE ALL APPROPRIATE ACTIONS TO CORRECT THE RECORD CITATIONS OF THE VETERAN'S MIDDLE NAME. ALTHOUGH NUMEROUS REFERENCES INDICATE THE MIDDLE INITIAL AS "F," THE VETERAN'S MIDDLE NAME IS EDWARD. See Veteran's DD form 214 (Armed Forces of the United States Report of transfer or discharge), signed by the Veteran with middle name "Edward" on August 11, 1971.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court 
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (West 2014).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs