Citation Nr: 21023145 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-06 103A DATE: April 20, 2021 ORDER Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for chronic lymphocytic leukemia (CLL) is denied. FINDINGS OF FACT 1. A claim of service connection for CLL was received by VA on May 11, 2017; there is no unadjudicated formal or informal claim of service connection for leukemia prior to May 11, 2017. 2. Adult leukemia was added to the list of diseases subject to presumptive service connection for a veteran exposed to contaminated water at Camp Lejeune, effective March 14, 2017. CONCLUSION OF LAW The criteria for an effective date earlier than March 14, 2017 for the award of service connection for CLL are not met. 38 U.S.C. § 5110 (a), (g); 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.114(a), 3,309(f), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1944 to February 1946 and from November 1950 to November 1953. His awards include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for CLL, effective from May 11, 2017. In October 2017, the AOJ assigned an effective date of March 14, 2017 for the award of service connection for CLL. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2021 hearing and a transcript of the hearing is associated with his claims file. Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for CLL The Board finds, for the following reasons, that an effective date earlier than March 14, 2017 for the award of service connection for CLL is not warranted. 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. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Adult leukemia was added to the list of diseases subject to presumptive service connection for a veteran exposed to contaminated water at Camp Lejeune, effective March 14, 2017. See 82 Fed. Reg. 4173 (Jan. 13, 2017). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the award shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) (“plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation”), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). In this case, a claim of service connection for CLL was received by VA on May 11, 2017 (see a May 2017 “Application for Disability Compensation and Related Compensation Benefits” form (VA Form 21-526EZ). In the August 2017 rating decision, the AOJ awarded service connection for CLL on the basis of the Veteran’s presumed exposure to contaminated water at Camp Lejeune. See 38 C.F.R. § 3.309(f). In the October 2017 rating decision, an effective date of March 14, 2017 was assigned for the award of service connection for CLL because adult leukemia was added to the list of diseases subject to presumptive service connection for a veteran exposed to contaminated water at Camp Lejeune effective as of that date. See 82 Fed. Reg. 4173 (Jan. 13, 2017). There is no evidence that the Veteran submitted any formal or informal claim of service connection for leukemia at any time prior to March 14, 2017, and the Veteran has not contended that any such earlier claim was submitted. Also, as explained above, service connection for CLL on a presumptive basis due to exposure to contaminated water at Camp Lejeune pursuant to the amended provisions 38 C.F.R. § 3.309 (f) is legally precluded prior to March 14, 2017. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). See also McCay, 9 Vet. App. at 187. The Veteran contends that the effective date of service connection for CLL should date back to when he was first diagnosed with the disease. In this regard, the Board acknowledges that medical records indicate that the Veteran was treated for CLL for many years prior to March 14, 2017. Under the former legal authority, 38 C.F.R. § 3.157 (b)(1) (in effect prior to March 24, 2015) provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. However, 38 C.F.R. § 3.157 (b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA). This regulation is therefore not for application in connection with the instant claim. There was also no language pointing to records mentioning leukemia in a way that, sympathetically read, would properly be understood as seeking benefits for that disease or evidence of a reasonably identifiable in-service diagnosis of leukemia that predates the Veteran’s claim. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) (“language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition” can satisfy the “identify the benefit sought” requirement of 38 C.F.R. § 3.155 (a)); Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018) (“The Secretary is correct that a general statement of intent to seek benefits for unspecified disabilities standing alone is insufficient to constitute a claim. Yet, the Secretary’s argument misses a crucial additional factor present here: evidence of reasonably identifiable in-service diagnoses of psychiatric conditions that predate the appellant’s claim were in the possession of the RO before it rendered its rating decision”). During the March 2021 Board hearing, the Veteran reported that he was unaware that compensation for his CLL was potentially available due to his exposure to contaminated water at Camp Lejeune. While the Board is sympathetic to the Veteran’s situation, the absence of such knowledge cannot serve as the basis for the award of an earlier effective date. Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Morris v. Derwinski, 1 Vet. App. 260 (1991). Persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent lack of knowledge. Morris, 1 Vet. App at 265. In sum, there is no evidence of any unadjudicated formal claim of service connection for leukemia prior to March 14, 2017, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Also, presumptive service connection for CLL on the basis of exposure to contaminated water at Camp Lejeune is legally precluded prior to March 14, 2017. Thus, March 14, 2017 is the earliest possible effective date. See 38 U.S.C. § 5110 (a), (g); 38 C.F.R. §§ 3.114(a), 3.400. (Continued on the next page) The Veteran had admirable service and made sacrifices for his country, and the Board is sympathetic to his contentions. However, the Board is bound by the laws and regulations that apply to claims for veterans benefits and it has no discretion in this regard. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.105. Those laws and regulations make clear that an earlier effective date for the award of service connection for CLL is not possible under the circumstances of this case. Although the Board is required to “render a decision which grants every benefit that can be supported in law,” it regrets that there is no basis in law to grant an effective date earlier than March 14, 2017 for the award of service connection for CLL. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.