Citation Nr: 21076474 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-34 175 DATE: December 23, 2021 REMANDED Entitlement to an earlier effective date for bladder cancer, ileal loop diversion ostomy prior to March 14, 2017 is remanded. Entitlement to an earlier effective date for scar, supra-pubic ostomy prior to March 14, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1953 to November 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In October 2021, a Board hearing was held before the undersigned, a transcript of which has been associated with the record. Generally, an appeal consists of a timely filed notice of disagreement (NOD), a statement of the case (SOC), and a timely filed substantive appeal (VA Form 9). 38 C.F.R. §§ 20.200 & 20.202. However, the Court of Appeals for Veterans Claims (CAVC) has held that a substantive appeal is not a jurisdictional requirement. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009). Furthermore, VA may waive any objection to the adequacy or timeliness of a substantive appeal, explicitly or implicitly, including if the agency of original jurisdiction (AOJ) or the Board has treated the disability rating matter as being adequately appealed. Id. at 45-47. For this reason, it is important to accurately identify the issues on appeal, including during a Board hearing. By way of procedural background, VA received the Veteran's initial claim for service connection for bladder cancer in December 2015. In May 2017, after developing the claim, the AOJ granted service connection for bladder cancer and the residual scar from surgery and assigned effective date of March 14, 2017 (the effective date of the change in law which made bladder cancer presumptively related to contaminated waters at Camp Lejeune). In the May 2017 rating decision, the AOJ deferred action on the effective date for bladder cancer despite assigning an effective date in the decision for both disabilities. In June 2017, the Veteran timely filed an NOD as to the effective dates for both disabilities. In August 2017, the AOJ denied an earlier effective date for bladder cancer. Then in June 2018, the AOJ sent a letter to the Veteran stating the only issue to be addressed from his June 2017 NOD was an earlier effective date for the service-connected scar and issued an October 2019 SOC for that issue only. The Veteran perfected a timely substantive appeal for the issue. Here, it is clear that the AOJ assigned effective dates for both disabilities in the May 2017 rating decision despite indicating there was to be a deferment of that issue. The AOJ's actions essentially deprived the Veteran the right to appeal the issue of an earlier effective date for bladder cancer because they indicated the issue was deferred, decided the issue, and then more than one year after the May 2017 rating decision, informed the Veteran that his original NOD would not be accepted as to the bladder cancer issue. No reasons and bases were provided in the June 2018 correspondence to the Veteran. Based on the above, the Board finds the claim for an earlier effective date for bladder cancer is still on appeal and the Veteran's June 2017 NOD effectively appealed the May 2017 rating decision which assigned an effective date. It is unclear why the AOJ deferred action on the effective date for bladder cancer only, especially when an effective date was assigned in that decision. The situation created an impression in which the Veteran would believe that the issue was effectively appealed until it was too late to take corrective action. The August 2017 rating decision denying an earlier effective date is essentially repetitive because it provides no additional bases for the effective date assigned in the May 2017 rating decision. For the claim of an earlier effective date for service-connected bladder cancer from the May 2017 rating decision, and June 2017 NOD, an SOC has not yet been issued. Thus, remand pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), is necessary. The Board notes for the AOJ that as the issue of an earlier effective date for service-connected scar, supra-pubic ostomy is being remanded for further development and as both earlier effective date claims are based on the same legal contentions, the AOJ may find it prudent to conduct the additional development outlined in the directives below before issuing the Manlincon-required SOC. Regarding the issue of an earlier effective date for the service-connected scar, supra-pubic ostomy, the Board finds the March 2017 VA examination is inadequate. The examiner's rationale for not finding a nexus between the Veteran's exposure to contaminates while in service and his bladder cancer relied solely on the absence of evidence in medical records of a current condition. It is clear from the record that the Veteran did in fact have the claimed disability and this oversight from the examiner renders the opinion inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Accordingly, a remand is required for a new VA medical opinion. The matters are REMANDED for the following action: 1. The AOJ should arrange for a VA medical opinion (from physician certified as a subject matter expert in relation to contaminated water at Camp Lejeune, but excluding the March 2017 examiner), with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of the Veteran's service-connected bladder cancer and post-surgery scar. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The Board notes that the Veteran has current diagnoses for both service-connected conditions and the examiner must assume the same for the purposes of this opinion. (b.) For the Veteran's diagnosed bladder cancer disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service, to include his exposure to contaminated water at Camp Lejeune? Please explain why. The Board notes for the examiner, the crux of the inquiry is not whether there existed a presumption prior to March 14, 2017, but rather whether it is at least as likely as not (50% or greater probability) that this particular Veteran's bladder cancer and secondary scar is at least as likely as not (50% or greater probability) causally linked (nexus) to his exposure to contaminated waters at Camp Lejeune, or any other in-service injury, disease, or event. The reason for this question is to clarify whether the effective date for the Veteran's service-connected 1) bladder cancer, ileal loop diversion ostomy, and 2) scar, supra-public ostomy associated with bladder cancer, should be assigned effective as of his December 10, 2015 date of claim, or as of the date on which bladder cancer became subject to presumptive service connection due to a regulatory change regarding Camp Lejeune water contamination, 38 C.F.R. § 3.309(f), that took effect on March 14, 2017. If the Veteran's bladder cancer and scar can, with a 50% or greater probability, be attributed to his exposure to contaminated water at Camp Lejeune, then the effective date of his claim could also serve as his effective date of service connection. The examiner should review and note such in the opinion any relevant research materials and articles. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran's reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) 2. After the above development is completed, the AOJ should send the Veteran and his representative an SOC that addresses entitlement to an earlier effective date for service-connected bladder cancer and a supplemental statement of the case (SSOC) for the issue of an earlier effective date for service-connected scar. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration as appropriate. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Williams, 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.