Citation Nr: 21040264 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-33 801 DATE: July 2, 2021 ORDER Entitlement to an effective date earlier than February 21, 2006, for the award of service connection for multiple myeloma, is denied. Entitlement to an effective date earlier than April 15, 2011, for the award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s), is denied. FINDINGS OF FACT 1. In an August 2003 rating decision, the Regional Office denied service connection for multiple myeloma. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. Thus, that decision became final. 2. The Veteran filed a claim to reopen entitlement to service connection for multiple myeloma on February 21, 2006; the claim was granted in a December 2006 rating decision and the RO assigned an effective date of February 21, 2006, the date of the Veteran's claim to reopen his claim of service connection for multiple myeloma. 3. Entitlement to SMC housebound benefits arose on April 15, 2011. CONCLUSIONS OF LAW 1. An effective date earlier than February 21, 2006, for the grant of service connection for multiple myeloma, is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.400, 3.816. 2. An effective date earlier than April 15, 2011, for the award of special monthly compensation (SMC), is not warranted. 38 U.S.C. §§ 1114(s), 5110; 38 C.F.R. §§ 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1967 to February 1971. These matters come before the Board from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in February 2021, it was remanded for additional development. The case has now been returned to the Board for further appellate consideration. The Board has considered the Veteran's claims and decided entitlement based on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to an effective date earlier than February 21, 2006, for the award of service connection for multiple myeloma The Veteran contends he is entitled to an effective date prior to February 21, 2006, pursuant to the Nehmer guidelines. Generally, the effective date of an award of disability compensation based on an original claim 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. Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Some exceptions to 38 C.F.R. § 3.400 exist. For example, special rules govern effective dates for disability compensation awarded to Veterans who meet the qualifications of 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989). Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a "covered herbicide disease." See 38 C.F.R. § 3.816(b). VA has established specific regulations pertaining to effective dates for awards of compensation for certain diseases based on herbicide agent exposure. Nehmer v. Veterans Admin. of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III) (now codified at 38 C.F.R. § 3.816). Specifically, certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide agent disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(2). If the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date will be assigned according to the standard law applying to the assignment of effective dates. 38 C.F.R. § 3.816(c)(4). Multiple myeloma became a presumptive disease associated with herbicide agent exposure on June 9, 1994. 59 Fed. Reg. 29, 723 (June 9, 1994). Analysis The Veteran contends he is entitled to an effective date for his service-connected multiple myeloma from a date prior to February 21, 2006. The Veteran first filed a claim for service connection for multiple myeloma on February 4, 2003, asking to amend his September 20, 2002, claim for irritable bowel syndrome (IBS) to include service connection for multiple myeloma. See February 2003 VA Form 21-4138 Statement in Support of Claim. The RO denied service connection for multiple myeloma in August 2003 because the records did not show a definitive diagnosis of multiple myeloma. The Veteran did not appeal this rating decision and it became final. The Board notes the Veteran raised the issue of clear and unmistakable error (CUE) with respect to the August 2003 rating decision. In a September 2020 rating decision, the RO found no CUE had been committed regarding the August 2003 rating decision. The adverse September 2020 rating decision constituted an initial decision to which the Appeals Modernization Act (AMA) applies. Under AMA, appellate review at the Board is initiated by a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). 38 C.F.R. §§ 20.201, 20.202. As that form has not been received, this issue is not under the Board's jurisdiction. To the extent that the Veteran's representative asserted CUE in an August 2003 rating decision in the context of the Veteran's earlier effective date claim in an April 2014 Notice of Disagreement, an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). The Veteran's CUE motion is not inextricably intertwined with the current earlier effective date appeal, as that matter may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Consequently, the Veteran's motion for revision of the August 2003 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. In February 2006, the Veteran filed a claim to reopen his claim of presumptive service connection for multiple myeloma. He noted that he had been diagnosed with multiple myeloma by his VA treating provider and served in Vietnam from 1968-1969. The records shows that the Veteran was definitively diagnosed with multiple myeloma in October 2006. See October 2006 VA examination. However, the Veteran's treatment records contain references to multiple myeloma findings prior to this date. Given the foregoing, the earliest possible effective date, under the law, for the grant of service connection for multiple myeloma, is February 21, 2006. See 38 C.F.R. § 3.400. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, the RO received the Veteran's claim to reopen his claim of service connection for multiple myeloma on February 21, 2006. Therefore, regarding the Veteran's multiple myeloma, the date of receipt of claim, February 21, 2006, is the later of the two dates, and is the appropriate effective date. The Board has also considered whether an earlier effective date could be assigned pursuant to Nehmer guidelines. As discussed above, multiple myeloma was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under § 3.309(e) effective June 9, 1994. See 59 Fed. Reg. 29723 (1994). Here, VA received the Veteran's original claim to establish service connection for multiple myeloma on February 4, 2003. Because the Veteran did not file a claim of service connection for multiple myeloma prior to June 9, 1994, the date the disease became presumptively associated with herbicide agent exposure in service, an earlier effective date in accordance with Nehmer guidelines and 38 C.F.R. § 3.816 is not warranted. As such, an effective date for the grant of service connection for multiple myeloma earlier than February 21, 2006, cannot be awarded. Entitlement to an effective date earlier than April 15, 2011, for the award of SMC The Veteran is seeking an effective date earlier than April 15, 2011, for the award of SMC. A Veteran is entitled to SMC under 38 U.S.C. § 1114(s) if the Veteran has a service-connected disability rated as total, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) by reason of such Veteran's service-connected disability or disabilities, is permanently housebound. The Veteran does not meet this requirement prior to April 15, 2011; thus, an earlier effective date is not warranted. In a February 2021 rating decision, the RO granted an earlier effective date of April 15, 2011, for the award of special monthly compensation given the Board's finding of entitlement to individual unemployability (TDIU) from April 15, 2011, and that TDIU is based on one disability: depression with post-traumatic stress disorder (PTSD). Specifically, because the award of TDIU is based on the single disability of depression with PTSD, rated at 70 percent disability, this fact satisfies the requirement for a single disability evaluated as totally disabling for purposes of SMC entitlement based on housebound status. Bradley v. Peake, 22 Vet. App. 280 (2008) (38 U.S.C. § 1114(s); 38 C.F.R. § 3.350). As a result, the Board concludes that the criteria for an effective date prior to April 15, 2011, are not met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.