Citation Nr: 18142499 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-44 747 DATE: October 16, 2018 ORDER Entitlement to an earlier effective date for Waldenstrom’s macroglobulinemia, Hodgkin’s lymphoma, prior to October 27, 2005, is denied. FINDING OF FACT On October 27, 2005, the Veteran filed his original claim seeking service connection for Waldenstrom’s macroglobulinemia. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than October 27, 2005, for the grant of service connection for Waldenstrom’s macroglobulinemia have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. Jurisdiction is currently with the RO in Togus, Maine. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board granted service connection for Waldenstrom’s macroglobulinemia in a February 2011 decision. In a September 2012 rating decision, the RO assigned an effective date of October 27, 2005. In December 2012, the Veteran expressed disagreement with the assigned service connection date. Entitlement to an earlier effective date for Waldenstrom’s macroglobulinemia, Hodgkin’s lymphoma, prior to October 27, 2005, is denied. In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. 5110(a); 38 C.F.R. 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. 5110(b)(1); 38 C.F.R. 3.400(b)(2)(i). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. 5101(a) (2012); 38 C.F.R. 3.151(a). The Veteran is seeking an effective date prior to October 27, 2005, for the award of service connection for Waldenstrom’s macroglobulinemia. At the June 2017 hearing, the Veteran testified that he was stationed at the Canadian Forces Base in Gagetown, New Brunswick in 1984 and 1991. See June 2017 Board Hearing Testimony p. 12. He explained that an earlier effective date was warranted because he did not learn that Agent Orange was used at Gagetown until 2005. Id. at 7. He stated that he was diagnosed with this condition in the early 1990s, but did not file a claim for service connection as the information regarding Agent Orange was not available to him at that time. An exception to the regulations regarding effective dates for disability compensation involves members of the Nehmer class under 38 C.F.R. § 3.816 (2016). VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816. In accordance with Nehmer and its implementing regulation, if VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985. and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law, which in this case is August 31, 2010. See 38 C.F.R. § 3.816(c)(1)-(3) (2017). In such circumstances, the effective date of the award will be the date VA received the claim, unless the claim was filed within a year of separation from service or some other exception is applicable. See 38 C.F.R. § 3.816(c). If the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). A Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” Id. According to 38 C.F.R. § 3.816(b)(2), a “covered herbicide disease” includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4. The Nehmer decision, and the corresponding regulations set forth in 38 C.F.R. § 3.816 only apply to “Vietnam veterans” which does not include veterans with service outside of Vietnam, including in the United States, the Korean Demilitarized Zone, or Thailand. Id. The Board has considered whether the Veteran is entitled to an earlier effective date under Nehmer. However, the Veteran does not meet the qualifications of a Nehmer class member, as the record reflects that the Veteran did not serve in the Republic of Vietnam. Moreover, the Veteran has not claimed that he served in Vietnam. As such, the Board is unable to assign an effective date earlier than October 27, 2005, under the provisions of 38 C.F.R. § 3.816. Following its review of the record, the Board finds that October 27, 2005, is the correct effective date for the award of service connection for Waldenstrom’s macroglobulinemia, because that is the date of receipt of his claim. The Veteran separated from active service in November 1969. He filed his original claim for service connection for Waldenstrom’s macroglobulinemia on October 27, 2005. There is no indication of a claim for service connection for this disability within one year of the Veteran’s date of separation from active duty service in November 1969, or within the 36 years following his separation. The Board has reviewed the Veteran’s file to determine if any formal or informal claim was received between his 1969 separation from service and October 25, 2005. No such claim was made. Although medical evidence has shown the existence of this condition prior to October 27, 2005, there is no evidence that the Veteran intended to file the claim prior to this date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection). Although the Board is sympathetic to the Veteran’s claim, the appropriate date for the establishment of service connection based upon the original claim for Waldenstrom’s macroglobulinemia is the date of receipt of the claim, October 27, 2005. In reaching this decision, the Board has considered the Veteran’s written statements; as well as testimony. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel