Citation Nr: 21021157 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 19-20 502 DATE: April 9, 2021 ORDER An effective date of June 9, 2016, for the award of service connection for small cell carcinoma (lung cancer) is granted. REMANDED Entitlement to an effective date prior to June 9, 2016, for the award of service connection for lung cancer is remanded. FINDING OF FACT 1. On September 6, 2016, VA received the Veteran’s VA Form 21-526EZ which included a claim for service connection for lung cancer. 2. On June 9, 2016, lung cancer was diagnosed. CONCLUSION OF LAW The criteria for entitlement to an effective date of June 9, 2016, for the award of service connection for lung cancer have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1965 to January 1967, and June 1967 to January 1972, to include service in Vietnam from November 1968 to January 1970. The Veteran died in May 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decisions by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge in a March 2021 hearing regarding the issue on appeal. Entitlement to an effective date prior to September 6, 2016, for the award of service connection for lung cancer. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation 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. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57, 660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. Under the revised regulations, although informal claims are no longer recognized, a claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within one year of receipt of the intent to file a claim. An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. VA considers an intent to file a claim to be submitted when an application that meets the previously stated requirements is electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system prior to filing a completed claim. 38 C.F.R. § 3.155(b). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and the claimant must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but the effective date shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). The appellant contends she is entitled to an effective date prior to September 6, 2016, for the award of service connection for lung cancer. See March 2021, Board hearing; June 2017, VA Form 21-4138; September 2017, Notice of Disagreement (NOD). On September 6, 2016, VA received the Veteran’s VA Form 21-526EZ which included a claim for service connection for lung cancer. In a November 2016 rating decision, the RO awarded service connection for lung cancer, and assigned an effective date of September 6, 2016 (date of receipt of claim). The Board notes that the Veteran served in Vietnam from November 1968 through January 1970. The liberalizing law that added lung cancer as a disease presumptively due to in-service exposure to herbicides became effective June 9, 1994. See 59 Fed. Reg. 29,723 (June 9, 1994). The circumstances of the Veteran’s lung cancer compensation claim do not meet the requirements of 38 C.F.R. § 3.816(c)(1) or (2). The Veteran was not denied compensation for lung cancer between September 25, 1985, and May 3, 1989. He also did not have a claim for compensation for lung cancer pending on May 3, 1989, and he did not submit a claim for compensation for lung cancer between May 3, 1989, and June 9, 1994. Thus, the effective date for the grant of service connection for lung cancer must be assigned according to 38 C.F.R. §§ 3.114, 3.400. After a review of the evidence of record, the Board finds an effective date of at least June 9, 2016, for the award of service connection for lung cancer is warranted. A September 2016 VA examination report indicates lung cancer was diagnosed on June 9, 2016. The Board acknowledges that the Veteran submitted a VA Form 21-526EZ, which contained a claim for service connection for lung cancer, on a claims-submission tool within a VA web-based electronic claims application system on May 18, 2016, and that submission is be considered an intent to file pursuant to 38 C.F.R. § 3.155(b)(1)(i); however, service cannot be granted prior to the date the disability was diagnosed. See June 2017, Identification materials; 38 C.F.R. § 3.303. Accordingly, pursuant to 38 C.F.R. § 3.114(a)(3), the appellant is granted an effective date of June 9, 2016, for the award of service connection for lung cancer. REASONS FOR REMAND Entitlement to an effective date prior to June 9, 2016, for the award of service connection for lung cancer is remanded. The appellant contends that the Veteran demonstrated symptoms of lung cancer prior to the June 9, 2016 diagnosis. Specifically, appellant testified that prior to June 9, 2016, the Veteran’s symptoms included: shortness of breath, dizziness, lightheadedness, difficulty breathing, fainting, passing out, and would sometimes fall when walking the dog. She also stated the Veteran had mucus and his lungs were drained. See March 2021, Board hearing. VA treatment records in May 2015 indicate the Veteran reported sharp pain in his right flank, dizziness, and chest pain with a burning sensation for two days after doing yard work the day prior. A June 2016 treatment note indicated a PET scan on May 18, 2016, revealed extensive multifocal hypermetabolic soft tissue densities in the right lower neck, right supraclavicular, peri-thyroid regions, and bulky right hilar and extensive paratracheal and mediastinal lymphadenopathy. See VA treatment records dated May 2015 and June 2016. As explained earlier, pursuant to the liberalizing rule of 38 C.F.R. § 3.114, an effective date prior to June 9, 2016, for the grant of service connection for lung cancer is possible based on the appellant’s testimony and the May 2015 VA treatment record. Thus, the Board finds remand is necessary to obtain a retrospective medical opinion to determine the earliest date that lung cancer manifested. See Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation). If it is found that the Veteran’s lung cancer had its onset before his current June 9, 2016, effective date, the Board finds that the evaluating clinician should also provide a retrospective medical opinion addressing the symptoms and severity of service-connected lung cancer for the relevant period from the date of onset to June 9, 2016. The matter is REMANDED for the following action: Forward the Veteran’s claims file to the September 2016 examiner, and if unavailable, an appropriate VA clinician to obtain an retrospective opinion as to (i) the date of onset of service-connected lung cancer, and (ii) the nature and severity of lung cancer for the period under review (i.e., from the date of onset to June 9, 2016). In providing this opinion, the reviewing clinician must consider appellant’s competent and credible testimony regarding the Veteran’s symptoms prior to June 9, 2016, and the VA treatment records at least as early as May 2015. All opinions provided should be supported by rationale. If the evaluating clinician is unable to provide an opinion without resort to speculation, the clinician should explain why that is so and note whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.