Citation Nr: 21023375 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-39 132 DATE: April 20, 2021 ORDER Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for residuals of bladder cancer, voiding dysfunction, and renal disease is denied. Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for recurrent urethral stone formation is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for residuals of bladder cancer, voiding dysfunction, and renal disease is remanded. Entitlement to an initial rating in excess of 30 percent for recurrent urethral stone formation is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded.   FINDINGS OF FACT 1. The earliest effective date for the award of service connection for residuals of bladder cancer, voiding dysfunction, and renal disease is March 14, 2017, the date the laws and regulations authorized presumptive service connection. 2. The earliest effective date for the award of service connection for recurrent urethral stone formation is March 14, 2017, the effective date of the award for service connection for residuals of bladder cancer, voiding dysfunction, and renal disease. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 14, 2017 for the award of service connection for residuals of bladder cancer, voiding dysfunction, and renal disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400, 3.114. 2. The criteria for an effective date earlier than March 14, 2017 for the award of service connection for recurrent urethral stone formation 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 from March 1969 to October 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned in December 2020. A transcript of the hearing is of record. Entitlement to TDIU, when reasonably raised by the record, is part of any claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the issue of TDIU has been raised by the record so it has been included as a separate issue. Effective Dates 1. Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for residuals of bladder cancer, voiding dysfunction, and renal disease is denied. 2. Entitlement to an effective date earlier than March 14, 2017 for the award of service connection for recurrent urethral stone formation is denied. The Veteran and his attorney contend that the Veteran is entitled to an earlier effective date for the awards of service connection for residuals of bladder cancer and recurrent urethral stone formation. Specifically, they allege the appropriate effective date for the claims is the day on which the Veteran was diagnosed with bladder cancer, as noted in the December 2020 Board hearing transcript. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award will be the day following separation from active service or the date entitlement arose if the claim is received by VA within one year after separation from service; otherwise, the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). 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(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to establish that veterans, former reservists, and former National Guard members, who served at Camp Lejeune for no less than 30 days (consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987 and who have been diagnosed with any of eight associated diseases, including bladder cancer, are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). Regarding the Veteran’s claim for residuals of bladder cancer, the record reflects that the Veteran was granted service connection for residuals of bladder cancer, voiding dysfunction, and renal disease in a November 2017 rating decision. The Agency of Original Jurisdiction (AOJ) assigned a 30 percent rating, effective March 14, 2017, the date of the law change allowing VA to grant service connection for bladder cancer on a presumptive basis. After review of the evidence of record, the Board concludes that an effective date earlier than March 14, 2017 is not warranted. At the outset, the Board notes that the Veteran’s claim was not received by VA within one year of the Veteran’s separation from service as VA received his claim in July 2017; thus, he is not entitled to an effective date a day following his separation from service. In such cases, the controlling regulation provides the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later. However, in this case, a liberalizing law applies and the provisions of 38 C.F.R. § 3.114 govern. The record reflects that the Veteran was diagnosed with bladder cancer in 2006, as noted on a July 2017 VA examination report. Thus, the evidence reflects that the Veteran met all eligibility criteria for service connection for bladder cancer on the effective date of the liberalizing law that allows presumptive service connection for bladder cancer based on exposure to chemicals at Camp Lejeune. Consequently, although the Veteran was diagnosed in 2006, entitlement did not arise until March 14, 2017, when bladder cancer was added to the list of presumptive conditions associated with Camp Lejeune. Therefore, the later of the two dates is the appropriate effective date in this case and the appeal for an earlier effective date is denied. Regarding the Veteran’s recurrent urethral stone formation, the Board notes that service connection for recurrent urethral stone formation was established in the July 2017 rating decision as secondary to the Veteran’s residuals of bladder cancer. An effective date of March 14, 2017 was assigned, which was the date the Veteran was granted service connection for bladder cancer. The Board notes that relevant law dictates that the effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008). Thus, the Board cannot assign an effective date for recurrent urethral stone formation secondary to residuals of bladder cancer that is earlier than the effective date for service connection for residuals of bladder cancer, which is March 14, 2017. The record does not contain an exact date on which the Veteran was first diagnosed with kidney stones, although medical records note a diagnosis as early as 2015. However, the exact date entitlement arose need not be ascertained as the effective date for an award of service connection for recurrent kidney stones secondary to residuals of bladder cancer can be no earlier than March 14, 2017, the effective date for service connection for residuals of bladder cancer. Therefore, the Board concludes an effective date earlier than March 14, 2017 is not warranted. In summary, the criteria for an award of an effective date earlier than March 14, 2017 for the award of service connection for residuals of bladder cancer and recurrent urethral stone formation have not been met and the claims are denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for residuals of bladder cancer, voiding dysfunction, and renal disease is remanded. 2. Entitlement to an initial rating in excess of 30 percent for recurrent urethral stone formation is remanded. The Board finds further development is required before a decision can be made regarding the Veteran’s claims. At the time of the July 2017 and October 2017 VA examinations, the record indicated that the Veteran had undergone a transurethral resection of a bladder tumor (TURBT) procedure in September 2006; chemotherapy in 2012; and several cystoscopies, with the last procedure completed in 2016. However, during the December 2020 Board hearing, the Veteran testified that he had undergone additional procedures after the 2017 VA examinations and medical records reflect that he underwent a transurethral resection of the prostate (TURP) and cystolithalopaxy in April 2019. In addition, during the Board hearing the Veteran also reported the use of absorbent materials due to his bladder condition and scarring as a result of his numerous procedures. Consequently, the Board finds the evidence indicates a potential worsening of his conditions and remand for new VA examinations are necessary to assess the current severity of his conditions. 3. Entitlement to TDIU is remanded. A TDIU rating, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Here, a July 2017 VA examiner opined that the Veteran’s condition impacted his ability to work. Thus, the issue of TDIU has been raised in the context of this appeal. However, the claim has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, a remand is required to allow the AOJ to consider the merits of the claim in the first instance. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations to assess the current severity of his service-connected residuals of bladder cancer, voiding dysfunction, and renal disease and service-connected recurrent urethral stone formation. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria, to include completion of appropriate Disability Benefits Questionnaires, if necessary. 2. Provide any needed notice and complete any development required on the claim for TDIU and adjudicate the matter of entitlement to a TDIU rating, to include consideration of whether referral for an extraschedular evaluation under 38 C.F.R. § 4.16(b) is required. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.