Citation Nr: 21070581 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-12 760 DATE: November 24, 2021 ORDER Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for bladder cancer with BPH/enlarged prostate is denied. Entitlement to an effective date prior to March 14, 2017 for the award of service connection for erectile dysfunction (ED) is denied. Entitlement to an effective date prior to March 14, 2017 for the award of special monthly compensation (SMC) due to loss of use of a creative organ is denied. FINDINGS OF FACT 1. VA received the Veteran's intent to file a claim for service connection for bladder cancer on November 23, 2016. Within one year, on December 7, 2016, he filed a claim for bladder cancer due to Camp Lejeune Contaminated Water (CLCW). 2. The earliest date of entitlement to service connection is March 14, 2017, the date of a VA liberalizing regulation that established entitlement to service connection for bladder cancer, on a presumptive basis for exposure to contaminated water at Camp Lejeune. There is no indication of earlier entitlement to service connection based upon a theory of direct service connection. There is also no earlier date of entitlement than March 14, 2017 for the secondary disabilities of ED and loss of use of a creative organ. 3. Applying the general rule of effective dates, the effective date would be the initial date of entitlement (March 14, 2017) as it occurs later than the earliest date of claim (November 23, 2016). CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 14, 2017, for the grant of service connection for bladder cancer with BPH/enlarged prostate have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than March 14, 2017, for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than March 14, 2017, for the grant of SMC for loss of use of a creative organ have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1957 to August 1959. This appeal arises from a February 2018 rating decision, which granted (1) service connection for bladder cancer with BPH/enlarged prostate, and assigned an initial 40 percent rating, effective from March 14, 2017; (2) service connection for ED, secondary to bladder cancer with BPH/enlarged prostate, and assigned an initial 0 percent rating, effective from March 14, 2017; and (3) SMC due to loss of use of a creative organ, effective from March 14, 2017. The Veteran appealed for earlier effective dates. Effective Date 1. Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for bladder cancer with BPH/enlarged prostate 2. Entitlement to an effective date prior to March 14, 2017 for the award of service connection for ED 3. Entitlement to an effective date prior to March 14, 2017 for the award of SMC due to loss of use of a creative organ Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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 provisions of 38 U.S.C. § 5110 refer to the date an "application" is received. "Date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1 (r). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a);38 C.F.R. § 3.400(b)(2)(i). The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The Court of Appeals for Veterans Claims has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober,14 Vet. App. 28, 35 (2000). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). If a Veteran submits an "intent to file" VA Form 21-0966 and files a fully developed claim within one year, the date of the claim is considered the date of submission of the intent to file form. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). For the date of claim, the Veteran filed a VA Form 21-0966 signaling his intent to file a claim for compensation on November 23, 2016. Within the statutory one-year period, he filed a claim for "bladder cancer CLCW," or bladder cancer due to Camp Lejeune Contaminated Water. Thus, November 23, 2016 is the date of claim. Regarding the date of entitlement, the AOJ has established March 14, 2017 as the date of entitlement. During the pendency of the appeal, effective March 14, 2017, VA liberalized its regulations regarding presumptive service connection, adding bladder cancer to the list of diseases associated with CLCW. See 38 C.F.R. §§ 3.307, 3.309. Thus, the AOJ's February 2018 rating decision granted service connection for bladder cancer, based upon the provisions of the Camp Lejeune presumption, effective from March 14, 2017. This is the earliest possible date of entitlement for presumptive service connection for bladder cancer, since that was the date of the new, liberalizing regulation. Similarly, his erectile dysfunction and loss of use of a creative organ, which were service-connected as secondary to his bladder cancer, were given the same effective date. In this case, the Veteran contends that his grant of service connection for bladder cancer (and secondary disabilities of ED and loss of a creative organ) warrant an earlier effective date because he believes he established entitlement on an earlier date. The Veteran is requesting an earlier effective date based upon a direct, rather than presumptive theory of service connection. That is, he believes instead that his entitlement should be backdated to November 23, 2016, or the date the VA received his "intent to file", because he was entitled to service connection on direct theory of service connection at that time. He asserts that direct service connection is warranted, on the premise that his bladder cancer was directly caused by or contributed to by exposure to toxins in the water at Camp LeJeune. The presumptive service connection provisions based on exposure to contaminated water at Camp Lejeune do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this regard, on review, the Board finds that the evidence does not support entitlement to service connection for bladder cancer on a direct basis. A June 2017 VA examination confirmed a diagnosis of bladder cancer since 1981 and BPH, or an enlarged prostate. However, there is no indication of in-service incurrence on review of the service treatment records. Further, the Board finds the signed March 2021 negative medical nexus opinion, that heavily weigh against the possibility of direct service connection, to be highly probative. The examiner reviewed the evidence of record, pertinent medical studies and the Veteran's risk factors, and provided a detailed rationale for the conclusions reached. Also, the Veteran is not competent to provide lay statements relating his bladder cancer with ED to service, as the issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the preponderance of the evidence is against the possibility of direct service connection for the claimed disabilities, including as due to Camp Lejeune contaminated water. Consequently, the Board finds the earliest date of entitlement for service connection for bladder cancer remains March 14, 2017, the date of eligibility for presumptive service connection for CLCW exposure. Applying the general rule of effective dates, the effective date for service connection for bladder cancer would be the earliest date of entitlement (March 14, 2017) as it occurs later than the earliest date of claim (November 23, 2016). Moreover, there is also no possibility to establish earlier entitlement than March 14, 2017 for erectile dysfunction and loss of a creative organ, which are service-connected on a secondary basis to bladder cancer. Again, applying the general rule of effective dates, the effective date for service connection for ED and SMC for loss of use of a creative organ would be the earliest date of entitlement (March 14, 2017) as it occurs later than the earliest date of claim (November 23, 2016). Thus, the probative and persuasive evidence weighs against the Veteran's claims for an earlier effective date. There is no doubt to be otherwise resolved. The Board finds that an effective date earlier than March 14, 2017 for these disabilities is not warranted. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, Biswajit 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.