Citation Nr: 20021468 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-28 450 DATE: March 25, 2020 ORDER Entitlement to an effective date of service connection for hypertension prior to November 7, 2013 is denied. REMANDED Entitlement to service connection for a right eye disability, claimed as cataract due to in-service exposure to ionizing radiation, is remanded. FINDING OF FACT The Veteran first filed a service connection claim for hypertension on November 7, 2014. CONCLUSION OF LAW The criteria for an effective date of service connection for hypertension prior to November 7, 2013 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1975 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision that, in pertinent part, granted service connection for hypertension, effective November 7, 2013. In May 2015, the Veteran submitted a timely notice of disagreement, appealing only the effective date of service connection for the disability. The Board acknowledges the Veteran’s representative has provided argument regarding the initial rating assigned for hypertension, but the Board does not have jurisdiction to review this issue as it is not encompassed by the scope of the Veteran’s May 2015 notice of disagreement and therefore was not addressed in the March 2016 statement of the case for this appeal. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). In this case, Section 506 of Public Law (PL)112-154, Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, applies since the Veteran filed his claim under Fully Developed Claims (FDC) process. Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the FDC process and is now codified as 38 U.S.C. § 5110(b)(2)(A). Section 5110 (b)(2)(A) indicates “[t]he effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” The record establishes the Veteran first filed a service connection claim for hypertension on November 7, 2014. The Veteran filed this claim under the FDC process; therefore, the effective date of service connection of November 7, 2013, assigned by the Agency of Original Jurisdiction, is the earliest possibly effective date authorized by statute. There is no evidence that suggests the Veteran filed a service connection claim for hypertension prior to his November 2014 claim. He has rather asserted an earlier effective date is warranted because hypertension was documented in medical records dating back to the 1970s. While cognizant of the Veteran’s assertion on appeal, the Board notes Congress has not authorized VA to establish an effective date of service connection on this basis and has clearly indicated the effective date of service connection will be the date of claim unless the claim is received within one year of discharge or release from active service or up to one year prior to the date of claim if filed under the FDC process. See 38 U.S.C. § 5110. VA cannot disregard the effective date rules established by Congress no matter how strong the equities. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Thus, the law is dispositive, and the Veteran’s appeal of the effective date of service connection for hypertension must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). REASONS FOR REMAND Treatment records establish the Veteran has right eye cataract. The Veteran claims his right eye cataract is the result of in-service exposure to ionizing radiation. His service personnel records include detailed documentation of his in-service exposure to ionizing radiation. “Posterior subcapsular cataract” is listed as a “radiogenic disease” in 38 C.F.R. § 3.311(b)(2). Although the Veteran’s cataract has been described as an “early anterior cortical cataract,” he has cited medical literature that indicates the ocular lens is relatively radiosensitive with cataract formation being long documented as a major ocular complication associated with exposure to ionizing radiation, noting several anatomical locations to nuclear, cortical, posterior subcapsular, or mixed types. Thus, the Board finds the special development procedures outlined in 38 C.F.R. § 3.311 apply in the Veteran’s case. See 38 C.F.R. § 3.311(b)(4) (indicating VA shall consider a claim based on a disease other than listed in 38 C.F.R. § 3.311(b)(2) if the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease). The matter is REMANDED for the following action: Forward the claims file to the VA Under Secretary of Health for the preparation of a dose estimate, to the extent feasible, based on available methodologies in accordance with 38 C.F.R. § 3.311(a)(2). Then, forward the claims file to the VA Under Secretary for Benefits for appropriate action under 38 C.F.R. § 3.311(c). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.