Citation Nr: 21031246 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-53 065 DATE: May 21, 2021 ORDER Entitlement to an earlier effective date of May 14, 2013, for the grant of service connection for bladder cancer is granted. FINDING OF FACT 1. Exposure to chemical contaminants in the water at Camp LeJeune caused or contributed to the Veteran's subsequent development of bladder cancer. 2. The Veteran first filed a claim for service connection for bladder cancer on May 14, 2013; a supporting medical opinion from the Veteran's treating urologist was received in December 2015. CONCLUSION OF LAW The criteria for an effective date of May 14, 2013, for the grant of service connection for bladder cancer have 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 June 1960 to March 1964. In April 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. Entitlement to an earlier effective date than March 14, 2017, for bladder cancer Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Effective March 14, 2017, VA amended its adjudication regulations, 38 C.F.R. §§ 3.307 and 3.309, regarding presumptive service connection, adding certain diseases associated with contaminants present in the base water supply at Camp Lejeune. The final rule establishes that Veterans who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive), between August 1953 and December 1987, and who have been diagnosed with any of eight associated diseases (adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin's lymphoma, and Parkinson's disease) are presumed to have incurred or aggravated the disease in service for purposes of entitlement to VA benefits. 38 C.F.R. §§ 3.307, 3.309. The presumptive service connection provisions based on exposure to contaminated water at Camp Lejeune do not preclude a claimant from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall 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. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). However, where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C. § 5110(g). Service connection for bladder cancer was granted in September 2017 based upon the provisions of the Camp Lejeune presumption. Because the effective date of the regulations allowing this presumption was March 14, 2017, this is the earliest possible date that a grant based upon this new, liberalizing regulation could be given. The Veteran is requesting an earlier effective date based upon a different theory of entitlement. He asserts that direct service connection is warranted, on the premise that his cancer was directly caused by or contributed to by exposure to toxins in the water at Camp LeJeune. The Veteran's first communication with VA was a May 14, 2013 formal application for service connection for bladder cancer related to his service at Camp Lejeune. The RO obtained the Veteran's service treatment records and personnel records which confirmed he did not have bladder cancer during service and that he had been stationed at Camp LeJeune for more than thirty days. The RO denied the claim in a March 2014 rating decision. In January 2015, within the year of the rating decision, the Veteran submitted private treatment records showing he had been diagnosed with, and treated for bladder cancer since May 2013. Additionally, a VA medical opinion was obtained in May 2015. The claim was again denied in a May 2015 rating decision. In December 2015 the Veteran filed a notice of disagreement. Before a Statement of the Case addressing the question of service connection could be issued, the RO granted service connection based upon the new regulatory presumption in September 2017. The Veteran filed a timely notice of disagreement contesting the effective date of this award of service connection. Initially, the Board notes that the above procedural history shows that, although the Veteran did not file a notice of disagreement with the March 2014 rating decision, new and material evidence was associated with the claims file within one year of the rating decision's notification; namely, the January 2015 private treatment records that showed he had been diagnosed with, and was being treated for bladder cancer. Accordingly, by operation of the 38 C.F.R. § 3.156(b) "pending claim" exception, the March 2014 rating decision did not become final. See Mitchell v. McDonald, 27 Vet. App. 431, 435 (noting that in Bond v Shinseki, "the Federal Circuit explained, 'VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim [for increase].'" (quoting 659 F.3d 1362, 1369 (Fed. Cir. 2011)). As the March 2014 rating decision did not become final, the date of the Veteran's claim in this case is May 14, 2013, the date of receipt of his initial claim seeking service connection for bladder cancer. Next, during the period in question, the claims file contains two medical opinions addressing the causation of the Veteran's bladder cancer. In medical statement received in December 2015, the Veteran's treating urologist acknowledged that the Veteran was stationed at Camp LeJeune from 1962 to 1964, during a time period when the water was contaminated with chemicals known to potentially cause bladder cancer, which he subsequently developed. The Veteran also submitted a host of articles and treatises pertaining to Camp Lejeune, as well as various contaminants and diseases. These articles cited to studies that etiologically linked certain diseases, such as bladder cancer, with exposure to contaminants, including trichloroethylene (TCE), which were found at Camp LeJeune during his period of time stationed there. An April 2015 VA medical opinion is to the contrary. This opinion is more extensive, and essentially relies upon the Veteran's other risk factors for cancer, to conclude that it is more likely these factors, including his age, race, gender and remote smoking history, caused his cancer. In support of the opinion, the examiner noted that cigarette smoking was the most common risk factor for developing bladder cancer. The examiner indicated that the Veteran had a remote history of tobacco smoking, until he quit in 1974/1976. The examiner cited to the medical literature noting that while occupational studies found an increased risk of developing bladder cancer due to exposure to TCE, which was found at Camp LeJeune, the levels of exposures to TCE reported in the studies were significant and considerably higher than the levels of exposures found at Camp Lejeune. As set forth above, subsequent to both of these medical opinions, the VA officially recognized the linkage shown in multiple epidemiologic studies between contaminants present at Camp LeJeune, and established the regulatory presumption effective in March 2017. In sum, the medical opinion statement from the Veteran's treating physician, together with the articles and studies submitted by the Veteran, provided a logical and reasonable explanation tending to show a connection between the Veteran's Camp LeJeune exposure and his subsequent development of bladder cancer. It is noteworthy that the articles and studies specifically found, and the VA examiner acknowledged, that TCE, a contaminant present at Camp LeJeune while the Veteran was stationed there, was associated with a higher risk of developing bladder cancer. Furthermore, the medical and scientific relationship between Camp LeJeune exposure and bladder cancer has been well established and recognized by VA. In the view of the Board, these factors outweigh the negative nexus opinion of record. Thus, after resolving any reasonable doubt in favor of the Veteran, the evidence in favor of the claim is at least in a state of equipoise with the evidence that weighs against the claim. It follows that entitlement to service connection for bladder cancer is then warranted on a direct service connection basis. Because direct service connection is warranted, the effective date of the grant of this benefit by operation of law shall be the date of receipt of his claim for that benefit. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As his claim was received by VA on May 14, 2013, an earlier effective date of May 14, 2013, is warranted for the grant of service connection for bladder cancer. As May 14, 2013 constituted the Veteran's first communication with VA, there is no discernable basis for an earlier date. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.