Citation Nr: A21000114 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 200123-56074 DATE: January 4, 2021 ORDER Entitlement to an effective date prior to March 14, 2017, for the award of service connection for bladder cancer is denied. FINDINGS OF FACT 1. The Veteran’s original service connection claim for bladder cancer was received on December 16, 2016; no claim for bladder cancer was received prior to that date. 2. In a May 2017 rating decision, the Regional Office (RO) granted service connection for bladder cancer associated with exposure to contaminated water at Camp Lejeune, effective March 14, 2017, which is the date that 38 C.F.R. §§ 3.307 and 3.309 were amended to include bladder cancer as a disability presumptively associated with contaminants present in the water supply at Camp Lejeune. CONCLUSION OF LAW The criteria for an effective date earlier than March 14, 2017, for the award of service connection for bladder cancer associated with exposure to contaminated water at Camp Lejeune are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA’s decision on their claims to seek review. This decision has been written consistent with the new AMA framework. The Veteran served on active duty from November 1969 to November 1972. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from May 2017 and June 2019 rating decisions of the Department of Veterans Affairs (VA) RO. In the May 2017 rating decision, the RO granted service connection for bladder cancer as of March 14, 2017, and deferred entitlement to an earlier effective date. In the June 2019 rating decision, the RO denied an earlier effective date. In the January 2020 VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Earlier Effective Date Claim In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a Veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 38 C.F.R. §§ 3.151, 3.155, 3.157. The regulations apply only to claims filed on or after March 24, 2015. Because the Veteran’s bladder cancer claim was received by VA after March 24, 2015, these regulations are applicable in this case. The law provides that, where compensation is awarded pursuant to any Act or administrative issue, the effective date shall not be earlier than the effective date of such Act or administrative issue. 38 U.S.C. § 5110(g). If compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114. Effective March 14, 2017, VA regulations allowed for presumptive service connection for certain disease associated with exposure to contaminated water at Camp Lejeune for certain veterans that met the requirements of 38 C.F.R. § 3.307(a)(7). See 38 C.F.R. § 3.309(f). Entitlement to an effective date prior to March 14, 2017, for the award of service connection for bladder cancer The Veteran contends that an earlier effective date for service connection for bladder cancer is warranted, specifically an effective date of December 16, 2016, as that was the date his initial claim was filed. See April 2020 brief. In a January 2020 statement, the Veteran stated that he served at Camp Lejeune for approximately eight continuous months, at which time he drank the water, showered, brushed his teeth, and ate food from the mess hall. He stated that it was “ridiculous” that VA did not believe that his time at Camp Lejeune caused his cancer prior to March 2017. He stated that he had cancer twice, once in June 2012 and in the fall of 2016. As such, he contended that his effective date should be based on the date of claim in December 2016. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than March 14, 2017, is not warranted for the grant of service connection for bladder cancer. Regarding the date of entitlement, the Board acknowledges the Veteran’s contention that he is entitled to an earlier effective date as he filed a service connection claim for bladder cancer in December 2016 based on exposure to contaminated water at Camp Lejeune before VA established presumptive service connection based on such exposure. However, the record shows that the RO actually granted service connection based on VA’s liberalizing amendment of 38 C.F.R. §§ 3.307 and 3.309 on March 14, 2017, which allowed presumptive service connection for certain enumerated diseases, including bladder cancer, related to exposure to contaminants present in the water supply at Camp Lejeune. The record does not suggest that there was evidence to support a grant of service connection on any other basis prior to that date. Thus, the date entitlement arose was March 14, 2017, the date that bladder cancer was added to the list of presumptive disabilities based on exposure to contaminated water at Camp LeJeune. The Board acknowledges that the Veteran was diagnosed with bladder cancer prior to March 14, 2017; and filed a service connection claim prior to March 14, 2017. However, an effective date prior to March 14, 2017, is legally precluded under any view of the regulations governing effective dates. The effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later under 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, the date of claim is December 2016, but the date entitlement arose is March 14, 2017, as that was when bladder cancer was added to the list of presumptive disabilities. In other words, although the Veteran’s bladder cancer claim was filed in December 2016 and VA recognizes the relationship between his bladder cancer and service, there was no basis for entitlement prior to March 14, 2017, as bladder cancer was not on the list of presumptive disabilities prior to that time. The record does not suggest that there was evidence to support a grant of service connection on any other basis prior to that date. Thus, the date entitlement arose was the date that bladder cancer was added to the list of presumptive disabilities based on exposure to contaminated water at Camp LeJeune, March 14, 2017; and an earlier effective date is not available under these provisions. Further, and more significantly, the law provides that, where compensation is awarded pursuant to any Act or administrative issue, the effective date shall not be earlier than the effective date of such Act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. Here, the effective date of the law allowing for presumptive service connection for bladder cancer based on exposure to contaminated water at Camp LeJeune is March 14, 2017. Thus, an effective date prior to that date is prohibited by law. Accordingly, the claim for an earlier effective date for the award of service connection for bladder cancer is denied. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, Associate 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.