Citation Nr: A22024378 Decision Date: 12/01/22 Archive Date: 12/01/22 DOCKET NO. 220112-210655 DATE: December 1, 2022 ORDER An initial disability rating of 100 percent for bladder cancer is granted, effective June 19, 2019. FINDINGS OF FACT 1. The Veteran's bladder cancer was initially diagnosed in 2017, and has remained active, without going into remission, throughout the appeal period. 2. The Veteran's claim for service connection for bladder cancer was received by VA on June 19, 2019. CONCLUSION OF LAW The criteria for a 100 percent disability rating for bladder cancer have been met from the date of his claim for service connection. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.310, 3.400, 3.816, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1964 through February 1988. This matter arises from a January 2022 decision by the Agency of Original Jurisdiction (AOJ) which affirmed an earlier assignment of a noncompensable disability rating for bladder cancer effective June 19, 2019, followed by a 100 percent disability rating effective in January 2021. In the January 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket, specifically disagreeing with the noncompensable rating assigned prior to January 12, 2021. Therefore, the Board's review is limited to the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38C.F.R. § 20.301. In February 2022, the Board denied an initial compensable disability rating for bladder cancer. The Veteran perfected an appeal to the United States Court of Appeals for Veterans Claims (Court). In July 2022, the Court endorsed a Joint Motion for Remand filed by both parties to the appeal, vacated the Board's decision, and remanded for further review and adjudication. The medical evidence of record shows that the Veteran's bladder cancer was initially diagnosed in 2017. He underwent two surgeries for removal of the cancer masses, the first in 2017 and the second in 2018. He later underwent radiation and chemotherapy. In June 2019, the Veteran submitted a claim for service connection for multiple disabilities, including a genitourinary condition to include erectile dysfunction. He subsequently submitted a formal claim for service connection for bladder cancer in March 2020. The AOJ liberally construed the June 19, 2019, claim as including the claim for bladder cancer and assigned an effective date of June 19, 2019, in granting service connection for bladder cancer. The Board will not disturb this conclusion. When the AOJ granted service connection, however, a zero percent or noncompensable disability rating was assigned, with a 100 percent disability rating assigned effective in January 2021. The Veteran asserts that a 100 percent disability rating is warranted for the entire appeal period, from June 19, 2019. Disability rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's service-connected bladder cancer is evaluated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7528, which pertains to malignant neoplasms of the genitourinary system and provides a 100 percent disability rating during and for six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. At the expiration of six months, a VA examination is required; if there has been no local reoccurrence or metastasis, the disability is then rated on residuals such as voiding dysfunction or renal dysfunction, whichever is the predominant manifestation. 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528. Here, the Veteran was diagnosed with bladder cancer and underwent two surgeries for treatment of the cancer. The medical evidence of record at the time of the decision on appeal shows that the two surgeries did not resolve the cancer and that he subsequently required chemotherapy and radiation. The malignancy nonetheless has not resolved. In the case of active cancer, a 100 percent disability rating is warranted. It is only after the cancer is in remission, without reoccurrence or metastasis, that any cancer residuals are evaluated based upon remaining voiding or renal dysfunction. From June 2019 to January 2021, the Veteran's bladder cancer continued to be active; therefore, the 100 percent disability rating is for application. We observe that other cancers in the regulatory Rating Schedule are treated in a similar manner, with a 100 percent rating assigned until the cancer has gone into remission. Therefore, a 100 percent disability rating is warranted for the time period from June 2019 to January 2021. Effective date Important in this case, effective January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 added three disorders to the list of presumptively associated diseases with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include bladder cancer, parkinsonism, and hypothyroidism as presumptively associated diseases with exposure to herbicide agents. In general, when VA compensation benefits (among other specified types of VA benefits) are awarded or increased pursuant to a liberalizing law approved by the Secretary of VA (Secretary) or at the Secretary's direction, the effective date of such award or increase 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); 38 C.F.R. § 3.114(a). However, a liberalizing exception to this rule is provided by 38 C.F.R. § 3.816 which was promulgated pursuant to various Court orders in the class-action case of Nehmer. Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Under 38 C.F.R. § 3.816, for certain diseases added by the Secretary to the list of diseases presumed to be caused by Agent Orange exposure, as set forth in 38 C.F.R. § 3.309(e), compensation benefits may be awarded prior to the effective date of the amendment adding the newly covered herbicide agent disease. See also 75 Fed. Reg. 53,202 (providing that the Nehmer rules apply to the presumptive diseases newly added to § 3.309(e)). The retroactive provisions of § 3.816 provide, in pertinent part, that when a compensation claim for a covered herbicide agent disease is denied in a decision issued between September 25, 1985, and May 3, 1989, or is pending before VA on May 3, 1989, or received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (January 1, 2021, in this case), the effective date of the award of service connection is the later of the date the claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c) (emphasis added). As applied to this case, although bladder cancer was not added to the list of diseases presumed to have been caused by herbicide exposure until January 2021, the operation of the Nehmer exception to the general rule regarding new regulations allows the assignment of an effective date reflecting the date of the claim. Because the Veteran's cancer was diagnosed prior to his claim, the later date of the two is the date of claim. Therefore, the effective date of June 2019 for the grant of service connection for bladder cancer and the grant of a 100 percent disability rating is proper and supported by law. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.