Citation Nr: 23014151 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 18-55 228 DATE: March 8, 2023 ORDER Entitlement to an effective date earlier than March 14, 2017 for the grant of service connection for cause of death is denied. FINDINGS OF FACT 1. The Veteran's original claim for direct service connection for leukemia, based on exposure to contaminated water while serving at Camp Lejeune, was filed on April 13, 2012. 2. The Veteran's April 2012 claim was denied by an unappealed September 2012 rating decision. 3. The presumption established for Camp Lejeune veterans became effective on March 14, 2017. 4. The appellant's initial intent to file a claim was received on April 3, 2017, within one year from the effective date of the liberalizing law, upon which the award of service connection for the Veteran's cause of death, as due to the contributing factor of adult leukemia, was based. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 14, 2017, for the grant of service connection for cause of death, have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 1310, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.307, 3.309, 3.312, 3.114, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1958 to July 1961. He died in August 2014. The appellant is his surviving spouse. This appeal to the Board of Veterans' Appeals (Board) is from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Effective date earlier than March 14, 2017 for the grant of service connection for cause of death The appellant contends that the Veteran filed a claim in May 2012 for chronic lymphocytic leukemia (CLL) while he was alive, so that the effective date for his grant of service connection for cause of death, in turn based on leukemia as a contributing factor, should be May 2012. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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 provisions of 38 U.S.C. § 5110 refer to the date an "application" is received. "Date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1 (r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). Where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, 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 C.F.R. § 3.114 (a). If a claim is received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). If an appellant submits an "intent to file" VA Form 21-0966 and files a fully developed claim within one year, the date of the claim is considered the date of submission of the intent to file form. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The Veteran's death certificate listed an immediate cause of death of atherosclerotic coronary vascular disease. The appellant filed an intent to file a claim on April 3, 2017 and then a DIC claim on April 11, 2017. In support of the appellant's claim of service connection for the Veteran's cause of death, the appellant submitted a May 2017 letter by a private treating provider, D.B., APRN, CNP, who noted that the Veteran had been diagnosed and treated for chronic lymphocytic leukemia (CLL), and opined that the CLL could have caused or contributed to his death. In a September 2017 rating decision, the agency of original jurisdiction (AOJ) granted the appellant's claim for service connection for the Veteran's cause of death, due to a contributing cause of adult leukemia, on a presumptive basis. Notably, adult leukemia is one of the listed diseases that is presumed to be due to exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309 (f). The AOJ assigned an effective date of March 14, 2017 for the grant of service connection for cause of death, based on the effective date of the Camp Lejeune law change and the fact that the Veteran's intent to file was received within one year of the effective date of the liberalizing law allowing for presumptive service connection for certain diseases, including adult leukemia, based on exposure to contaminated water at Camp Lejeune. Turning first to the appellant's contention of a pending claim since 2012, the Board observes that the Veteran filed a claim for service connection for leukemia on April 13, 2012, as being attributable to contaminated water during his service at Camp Lejeune. In support of the Veteran's claim, he submitted private treatment records that diagnosed CLL. However, the AOJ denied the Veteran's claim in an unappealed September 2012 rating decision, addressing a theory of direct service connection. The reasons for the denial were a lack of in-service incurrence shown on the service treatment records and a negative nexus opinion provided by the August 2012 VA examiner. The Veteran was properly notified of the September 2012 denial of service connection for CLL and did not appeal it. See 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.200, 20.202. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). Here, there is no contention or indication of CUE in the AOJ's prior final denial of service connection for CLL in September 2012. Thus, the evidence does not establish a basis for the Board to consider the date of the original April 13, 2012 claim as a possible effective date, as that claim was not pending after the final September 2012 rating decision. Further, the Board emphasizes that the basis for the ultimate grant of service connection for the Veteran's cause of death relied upon the Veteran's presumptive entitlement to service connection, due to the Camp Lejeune liberalizing law, rather than a theory of direct service connection. In that regard, the appellant's initial intent to file a claim for service connection for the Veteran's cause of death was received on April 3, 2017. However, the record reveals no earlier filed claim for service connection for cause of death. Effective March 14, 2017, VA liberalized its regulations regarding presumptive service connection, adding adult leukemia to the list of diseases associated with Camp Lejeune contaminated water. See 38 C.F.R. §§ 3.307, 3.309 (f). Thus, the earliest possible effective date allowed by law in this case is March 14, 2017, the date of the liberalizing law. As such, an effective date prior to that date may not be awarded in accordance with VA regulations and the claim must be denied. 38 C.F.R. § 3.114 (a). For the above reasons, the evidence weighs substantially against this claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and an earlier effective date than March 14, 2017 for the grant of service connection for the cause of death is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.