Citation Nr: 21040731 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-09 041 DATE: July 6, 2021 ORDER Entitlement to an earlier effective date of December 28, 2012, for the award of service connection for chronic lymphocytic leukemia (CLL) with symptoms of chronic fatigue, joint pain, headaches, and mood swings is granted. FINDINGS OF FACT 1. The Veteran was exposed to chemical contaminants while stationed at Camp Lejeune during his period of active service. 2. The Veteran first filed a claim for service connection for chronic lymphocytic leukemia on December 28, 2012, with supporting medical opinions from Dr. LH (December 2012) and Dr. HB (November 2014). 3. The Veteran's exposure to chemical contaminants in the water at Camp LeJeune caused or contributed to the Veteran's subsequent development of his chronic lymphocytic leukemia. CONCLUSION OF LAW The criteria for entitlement to an effective date of December 28, 2012 for the award of service connection for chronic lymphocytic leukemia with symptoms of chronic fatigue, joint pain, headaches, and mood swings have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the Navy from August 1981 to August 1985. This case comes before the Board of Veteran's Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This decision granted in full the benefit sought in an appeal stemming from and April 2014 decision. In June 2020, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The Board notes that the Veteran was not present at the hearing due to scheduling confusion resulting from the Covid-19 pandemic. However, his representative read a statement that was prepared by the Veteran. Earlier Effective Date 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 regarding presumptive service connection, 38 C.F.R. §§ 3.307 and 3.309, 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. However, 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. 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. § 5510(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 CLL was granted in a November 2017 rating decision 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 was warranted, on the premise that his CLL was directly caused by or contributed to by exposure to toxins in the water at Camp LeJeune. In other words, he asserts that of the potentially available effective dates, his date of claim should control. He had the condition well prior to making the claim and argues he proved the necessary nexus due to in-service injury, establishing entitlement from a period prior to the claim. The presumption, he argues, was not necessary to grant his claim, and its effective date is irrelevant. The Veteran filed his formal claim seeking service connection for CLL on December 28, 2012. At that time he also submitted private treatment records reflecting that he was diagnosed in 2005, as well as a private medical opinion relating his condition to exposure to toxins at Camp Lejeune. The Veteran's service personnel records documented that he served at Camp Lejeune from May 1983 to June 1983 and January 1985. Accordingly, exposure to contaminated drinking water at Camp Lejeune is established. In April 2014, the RO denied service connection for CLL. Specifically, the RO denied service connection because his condition neither occurred in nor was caused by service. The Veteran submitted a private opinion from his treating oncologist Dr. LH. In a December 2012 letter, Dr. LH indicated that the Veteran had a history of chronic lymphocytic leukemia (CLL) diagnosed 7 years prior. She was recently informed that the Veteran was exposed to benzene, tetrachloroethylene, trichloroethylene, and other VOC's during this time in service while at Camp Lejeune, NC. She noted that benzene and other solvents had been linked as a possible cause of CLL. A March 2014 VA examiner opined that CLL was less likely than not related to in-service exposures, as "the evidence of an association between NHL [Non-Hodgkin's Lymphoma] and organic solvents is limited and the literature does not definitively support a causal relationship." She reasoned that NHL and CLL were essentially the same disease at different stages, and so research regarding NHL was applicable. An April 2014 decision denied service connection for CLL on a direct basis. In a November 2014 letter, Dr. HB noted that the chemicals perchloroethylene, trichloroethylene, dichloroethylene, vinyl chloride, and benzene toluene ethylbenzene and xylene were shown to be a carcinogenic to humans. She indicated that chemicals such as those were linked to cancers of the liver, kidney, prostate, lung, and leukemia. She noted that even though that he was exposed years prior, the exposure could possibly be linked to his current development and diagnosis of CLL. She opined that the CLL was at least as likely as not cause by, or the result of the exposure to those chemicals, while stationed at Camp Lejeune. In March 2016, another VA doctor also opined negatively. She addressed the Veteran's private opinions, opining that Dr. LH and Dr. HB had not provided sufficient rationales. Dr. LH did not account for non-service potential exposures, while Dr. HB had overestimated in-service exposure. In November 2017, the RO granted service connection for CLL based on the new presumption, but also noting the evidence supporting direct service connection. The RO decision assigned the effective date March 14, 2017 based on the effective date of the amended regulations, stating that "because we received an unfavorable medical opinion, we are unable to provide you with..." an earlier effective date. The RO essentially failed to adjudicate direct service connection in November 2017. It simply noted there was a negative opinion of records, without weighing the relative probative values of the four opinions of record. The Veteran argues that had it done so, it would have granted the benefit without regard to the presumption. The Board agrees. There are two positive and two negative nexus opinions of record. The negative opinions appear contradictory to an extent. The first equates CLL with another lymphatic cancer to show a lack of nexus, while the second says there is no equivalency, and causation is only shown for certain lymphatic cancers. The second VA doctor also attack the bases for the positive private opinions, but fails to explain exactly how the specific objections raised, particularly with regard to extent or source of exposure, rob them of probative value. In effect, the second examiner conceded a potential nexus, and argued over the extent of exposure. That is a factual matter, not one for medical resolution, and exposure sufficient to cause CLL is established. At worst, the nexus evidence was in equipoise regardless of the presumption, and so direct service connection should have been found. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 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 December 28, 2012, an earlier effective date of December 28, 2012, is warranted for the grant of service connection for CLL. There is no evidence of any earlier communications seeking service connection for CLL disease, nor does the Veteran assert such. Accordingly, there is no basis for an effective date prior to December 28, 2012. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.