Citation Nr: 18148330 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-19 334 DATE: November 7, 2018 ORDER An earlier effective date of April 14, 2014 for the award of a 100 percent rating for metastatic myxofibrosarcoma is granted. APPELLANT’S CONTENTIONS The Appellant contends that the Veteran’s 100 percent rating for metastatic myxofibrosarcoma should be effective April 25, 2003, the date originally assigned to the grant of service connection, because, following treatment in 2002, the Veteran’s cancer never went into remission, leading to its discovery again in 2015. Alternatively, the Appellant contends that the Veteran filed a claim for service connection for his spine around the year 2008 and, as the metastatic myxofibrosarcoma was found in 2015 to impact the spine, an effective date in 2008 should be assigned. FINDINGS OF FACT 1. In an August 2003 rating decision, VA granted the Veteran service connection for myofibrosarcoma and myomixofibrosarcoma, status post resection, and assigned a 10 percent rating effective April 25, 2003—the date VA received the claim for service connection. Evidence associated with the claims file at the time of rating decision indicated that the Veteran had completed treatment for his cancer, which was currently in remission; a 10 percent rating was assigned for a surgical scar. The Veteran did not submit a notice of disagreement (NOD) or submit additional evidence within one year of being notified. Accordingly, the August 2003 rating decision became final. 2. In May 2007, the Veteran filed a claim for service connection for spinal stenosis or degenerative disc disease. In his claim form, the Veteran stated that he had been diagnosed with a spine disability about one year prior. This claim was denied in an October 2007 rating decision. The Veteran did not submit an NOD or submit additional evidence within one year of being notified. Accordingly, the October 2007 rating decision became final. 3. On April 14, 2015, the Veteran submitted a claim for an increased rating regarding his service-connected myofibrosarcoma and myomixofibrosarcoma. In support of his claim, he submitted copies of email communications between himself and Dr. Boles, a VA clinician, regarding a recent cancer diagnosis. In her responses, dated March 31, 2015, Dr. Boles indicated that: (A) the Veteran currently had metastatic carcinoma; (B) his cancer in 2015 was the same type of cancer that was removed in 2002; (C) a VA pathologist found a case report in which metastases from myxofibrosarcoma had been found up to 45 years after an original tumor was removed; and (D) the Veteran presently had tumors on the vertebrae, lungs, and liver. 4. In a separate VA treatment record dated March 24, 2015, Dr. Boles noted that she called the Veteran and stated that he had metastatic fibromyxoid sarcoma with metastases to the L1, liver, and lungs. She indicated that the tumor at the L1 was the only symptomatic lesion. Lastly, she stated that the lesions had taken 13 years to grow to their current size. 5. In July 2017, the RO granted service connection for metastatic myxofibrosarcoma and assigned a 100 percent disability rating, effective March 18, 2015. Although the RO categorized the issue as one for service connection, the issue adjudicated was one for an increased rating. 6. On August 9, 2017, the Veteran passed away. The Appellant is his surviving spouse. CONCLUSION OF LAW The criteria for an effective date of April 14, 2014, but no earlier, for the award of a 100 percent rating for metastatic myxofibrosarcoma are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.104, 3.151, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1961 to March 1970, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In October 2017, the Board dismissed the issue on appeal due to the Veteran’s death in August 2017. However, the Board noted that this dismissal did not impact the ability of an individual to seek substitution and continue the appeal to its conclusion. Immediately thereafter, VA granted the Appellant’s substitution request. In December 2017, the Appellant and the Veteran’s sons, S.P. and P.P., testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Effective Date As indicated above in the Conclusions of Law section, the Board finds that an effective date of April 14, 2014, but no earlier, is warranted for the award of a 100 percent rating for metastatic myxofibrosarcoma. In support of this determination, the Board notes that, under 38 C.F.R. § 3.400(o)(2), the Board may assign a retroactive effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred within the year prior to claim filing. As mentioned in the Findings of Fact section, the Veteran filed his claim on April 14, 2015. It was filed as a claim for an increased rating regarding a disability already granted service connection by VA in August 2003. From the March 2015 statements of Dr. Boles, the Board finds that the Veteran’s metastatic myxofibrosarcoma existed at least one year prior to the filing of the claim. As such, the date April 14, 2014—exactly one year prior to the receipt of claim—is awarded as the effective date for the 100 percent rating. Based on statements from Dr. Boles and the clinical evidence dated within the year prior to the receipt of the increased rating claim, it is clear that the disability worsened within the year prior to claim filing. Regarding the Appellant’s primary contention of entitlement to an effective date of sometime in 2003 or 2008, the Board finds that, although it is sympathetic Appellant’s position, it is barred by law from assigning a date earlier than April 14, 2014. In support of this determination, the Board finds that VA was not aware that the Veteran’s metastatic myxofibrosarcoma was active prior to April 14, 2014 such that it was in constructive possession of medical treatment records indicating an increase. Cf. Turner v. Shulkin, 29 Vet. App. 207, 218 (2018) (describing the process for triggering constructive receipt of VA treatment records within the context of 38 C.F.R. § 3.156(b)). At no time prior to April 14, 2014 was VA made aware that the Veteran’s metastatic myxofibrosarcoma was active such that VA adjudicators could infer an informal claim for an increased rating. Prior to March 24, 2015, VA could have accepted any communication or action indicating an intent to apply for VA benefits as an informal claim as long as the claimant identify the benefit sought. See 38 C.F.R. §§ 3.1(p), 3.155. The record indicates no such communication or action regarding metastatic myxofibrosarcoma prior to April 14, 2014. The Board acknowledges that the Veteran applied for service connection for spinal stenosis and degenerative disc disease in May 2007, and that his complaints of severe lower back pain in August 2014 ultimately led to the discovery of a tumor on his vertebrae in 2015. However, neither VA nor private medical professionals discovered the presence of that tumor during the pendency of the May 2007 claim, or at any point prior to April 14, 2014. Indeed, a June 2005 discharge report from a non-VA urgent care facility assigned the Veteran a diagnosis of lower back strain. Thereafter, a June 2006 VA MRI of the lumbar spine revealed multi-level degenerative disc disease with disc bulges and facet hypertrophy, diffuse congenital spinal stenosis, compression of the L3 and L4 exiting nerve roots, and marked epidural lipomatosis with compression of the spinal cord at the level of L3 and L4. Similarly, VA physical therapy notes from the year 2007 indicate a diagnosis of spinal stenosis and a September 2007 VA orthopedic surgery attending note provided a diagnosis of lumbar spinal stenosis L4-5 and L5-S1 with spondylolisthesis. Additionally, a September 2007 MRI of the lumbar spine from Tri-City Medical Center indicated moderate to severe multilevel degenerative disc disease with posterior spur and disc formation as well as various degrees of spinal stenosis most prominent at L3-L4. Between receipt of the Tri-City MRI in July 2008 until the receipt of the current claim on appeal on April 14, 2015, there were no additional communications regarding a claim for benefits regarding a disability of the spine or a recurrence of the Veteran’s already service-connected cancer. As such, the earliest VA was made aware of a disability ultimately diagnosed as metastatic myxofibrosarcoma was the date of claim on April 14, 2015. As such, the Board is limited by operation of law from awarding an effective date earlier than one year prior to the receipt of the increased rating claim. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel