Citation Nr: 21024900 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-25 835 DATE: April 26, 2021 ORDER Entitlement to an effective date prior to March 14, 2017 for service-connected liver cancer residuals is denied. REMANDED Entitlement to service connection for a liver condition, other than liver cancer, is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected liver cancer residuals is remanded. FINDING OF FACT The earliest effective date for the award of service connection for liver cancer is March 14, 2017, the date the laws and regulations authorized presumptive service connection. CONCLUSION OF LAW The criteria for an effective date earlier than March 14, 2017, for the award of service connection for liver cancer, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1972 to May 1975. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Board granted service connected for liver cancer effective March 14, 2017. The Veteran filed a notice of disagreement (NOD) in January 2019 to a December 2018 rating decision which assigned a 20 percent disability rating effective March 14, 2017. The NOD asserted that the Veteran disagrees with the disability rating and effective date. In addition, the March 2018 decision issued a remand for additional development for the claim for service connection for other liver conditions. In February 2019, the matter came back before the Board and another remand was issued for development. In the most recent Board decision in October 2020, the Board issued a remand to obtain a supplemental medical opinion. 1. Earlier Effective Date Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. 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). The Veteran is currently seeking entitlement to an effective date earlier than March 14, 2017, for his service-connected liver cancer. The RO awarded the current effective date because March 14, 2017, was the date that the law was changed to add liver cancer as a condition presumed to be associated with exposure to chemicals at Camp Lejeune. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, 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). Because the Veteran’s claim was filed in January 2016, many years after he was discharged from service, as a general matter, the effective date would be the date of receipt of the claim, as that is later than the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, as noted above, a liberalizing law applies and the criteria for retroactive payment pursuant to 38 C.F.R. § 3.114 are applicable. The medical evidence shows the Veteran presented with a diagnosis of liver cancer since September 2015. Based on this evidence, the Veteran met all eligibility criteria for service connection for liver cancer on the effective date of the liberalizing law that allows presumptive service connection for liver cancer based on exposure to chemicals at Camp Lejeune. Although the Veteran has argued for an earlier effective date, an effective date prior to March 14, 2017, is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is 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(b)(2)(i). Even though the Veteran’s liver cancer was diagnosed in September 2015, and the original claim was filed in January 2016, entitlement did not arise until March 14, 2017, when liver cancer was added to the list of presumptive conditions associated with Camp Lejeune. Therefore, this later date is the appropriate effective date in this case, and the appeal for an earlier effective date is denied. REASONS FOR REMAND 1. Liver Condition Unfortunately, the Board finds that a remand is warranted for additional development. In the prior October 2020 Board remand, an addendum opinion was requested to identify whether the Veteran has any liver condition other than liver cancer. In December 2020, a new VA medical opinion was obtained. Here, the examiner noted that the Veteran has a diagnosis of cirrhosis of the liver. The Board finds that additional liver conditions, to include hepatitis C, are noted in the medical records. The additional liver conditions were not addressed within the December 2020 VA medical opinion. Therefore, the Board find a remand is warranted. In addition, the rationale in the December 2020 VA medical opinion is insufficient. The examiner noted the Veteran’s symptoms of lethargy and enlarged liver only. These symptoms were noted to be found as a symptom of both liver cancer and cirrhosis. The Board notes that the record includes additional symptoms which were not addressed within the medical opinion. Therefore, the Board finds that a remand is warranted. 2. Increased Rating Unfortunately, the Board finds that a remand is warranted to determine the Veteran’s severity of his symptoms during the period on appeal. In October 2019, the Veteran’s VA examination noted that he suffered from near-constant and debilitating fatigue and malaise. He was also noted to suffer from daily right upper quadrant pain. Then, the examiner found that Veteran did not suffer from incapacitating episode as a result of his liver condition. The Board finds the two findings are inconsistent. Then, the September 2018 VA examination noted that the Veteran suffered from daily fatigue but did not address whether he suffered from any incapacitating episodes. Lastly, in June 2018, the Veteran’s VA examination notes symptoms including near-constant and debilitating fatigue, anorexia, and nausea. He was also noted to suffer from daily right upper quadrant pain. Again, the examiner did not find that the Veteran had incapacitating episodes, which the Board finds contradicts the finding of near-constant and debilitating symptoms. Therefore, the Board finds a remand is warranted to determine the level of severity of the Veteran’s service-connected liver cancer residuals. The matters are REMANDED for the following action: The RO should obtain a new VA medical opinion for the Veteran’s liver conditions based upon a claims file review. If the examiner finds that a new VA examination is necessary, then one must be completed prior to issuing the requested medical opinion. The examiner is asked to specifically address the following: 1) Identify any and all liver conditions, other than liver cancer, that the Veteran was diagnosed with, to include hepatitis C and cirrhosis. For each liver condition, explain the symptoms of the liver condition. The examiner should address any duplicative or overlapping symptoms to the Veteran’s liver cancer. For any liver condition which has symptoms that are not duplicated by the Veteran’s liver cancer, the examiner should address whether it is at least as likely as not (a 50 percent or greater probability) that any of the identified liver conditions is/are etiologically related to service. 2) The examiner should consider the VA examinations and determine, based on the medical evidence, the symptoms the Veteran manifested in connection with his liver cancer during the entire period on appeal. For each symptom, the examiner should determine its severity during the period on appeal and whether any individual symptom or the totality of the symptoms resulted in the Veteran suffering an incapacitating episode at any time during the period on appeal. If the examiner finds that any symptom is near-constant and debilitating, but does not find that an incapacitating episode occurred, the examiner must explain. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.