Citation Nr: 23042657 Decision Date: 08/03/23 Archive Date: 08/03/23 DOCKET NO. 17-48 323A DATE: August 3, 2023 ORDER Entitlement to an effective date before March 14, 2017 for the grant of service connection for invasive bladder carcinoma is denied. Entitlement to a compensable rating for invasive bladder carcinoma is denied. FINDINGS OF FACT 1. The earliest effective date for the award of service connection for bladder cancer residuals is March 14, 2017, the date the laws and regulations authorized presumptive service connection for diseases related to contaminated water at Camp Lejeune. 2. There has been no local reoccurrence or metastasis of the Veteran's invasive bladder carcinoma during the appeals period, and the Veteran does not have renal dysfunction, urine leakage, urinary frequency, or obstructed voiding residuals related to the invasive bladder carcinoma. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 14, 2017 for the award of service connection for bladder cancer have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.307, 3.309, 3.114, 3.400. 2. The criteria for a compensable initial rating for invasive bladder carcinoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision that granted service connection for invasive bladder carcinoma as presumed to have been caused by exposure to contaminants in the water supply at Camp Lejeune. The Veteran filed a Notice of Disagreement in June 2017 and listed service connection for bladder cancer as the issue being appealed. The Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) in August 2017 explaining why the effective date for service connection had been set as March 14, 2017, and why a compensable rating was not warranted. The Veteran submitted a VA Form 9 appeal in August 2017, and appeared to argue that service connection for bladder cancer should be granted. Following additional development, the AOJ issued a Supplemental Statement of the Case (SSOC) that recharacterized the issue as entitlement to an increased initial rating for invasive bladder carcinoma. The Veteran requested a Travel Board hearing in his VA Form 9. In November 2022, the Board notified the Veteran and his representative that a travel hearing had been scheduled for March 16, 2023. In January 2023, the Veteran's representative requested that the hearing be rescheduled for a later date as a Board video hearing. The Veteran and his representative were notified by letter that a video hearing had been scheduled for June 13, 2023. A report of general information dated June 13, 2023, indicates that the Veteran had informed his representative that he had no appeals and had hung up during a telephone conversation. The VA Regional Office where the video hearing had been scheduled was unable to contact the Veteran by telephone regarding the hearing. A second report of general information dated June 13, 2023, indicates the Veteran failed to appear at the hearing and that his representative was unable to find the Veteran in the lobby of the Regional Office. If an appellant fails to appear for a scheduled Board hearing, and a request for postponement has not been received and granted, the appeal will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.603 (d). The Veteran failed to appear for the June 13, 2023 hearing without good cause. No request for postponement was received, and no additional requests for a hearing have been received. As such, the appeal will proceed as though the request for a hearing has been withdrawn. The Veteran's Notice of Disagreement and VA Form 9 appear to appeal the issue of entitlement to service connection for bladder cancer, which has already been granted. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. However, the Board is also obligated to construe arguments raised in a substantive appeal in a liberal manner for purposes of determining whether they raise issues on appeal. 38 C.F.R. § 19.22. The VA Form 9 shows the Veteran had argued that he had filed his claim for service connection in 2015, and that he believed he had compensable symptoms related to his bladder cancer. Moreover, the AOJ sympathetically and liberally construed the issue on appeal when the August 2017 SOC and May 2022 SSOC were issued. Considering the AOJ's characterization of the issues in the SOC and SSOC, and the Board's duty to construe arguments raised in the substantive appeal in a liberal manner for purposes of determining whether they raise issues on appeal, the Board has recharacterized the issues on appeal as claims for an effective date before March 14, 2017 for the grant of service connection for invasive bladder carcinoma, and for an increased rating for invasive bladder carcinoma. 1. Entitlement to an effective date before March 14, 2017 for the grant of service connection for invasive bladder carcinoma. The Veteran seeks an earlier effective date for the grant of service connection for his invasive bladder carcinoma. Medical records show he was first diagnosed and treated for the bladder cancer in 2011, and the initial claim for service connection for bladder cancer was received by VA on June 17, 2015. The general rule regarding effective dates is found at 38 U.S.C. § 5110 (a): Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Where compensation is awarded pursuant to any Act or administrative issue, 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). The effective date for an award of disability compensation may be the day following separation from active service if a claim is received within 1 year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953 to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). One of the diseases added to the list was bladder cancer. Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Here, the Veteran's initial claim for service connection for bladder cancer was received by VA in June 2015. There is no earlier claim seeking service connection for bladder cancer. June 2015 is many years after he was discharged from service, as a general matter, the effective date would be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the Veteran filed his initial claim for service connection in June 2015. He claimed only that his bladder cancer was due to exposure to contaminated water while he was stationed at Camp Lejeune. Service connection was granted for the bladder cancer in a in a May 2017 rating decision, and the AOJ made clear the claim was granted based on the presumption that bladder cancer was due to exposure to contaminants in the water supply at Camp Lejeune. A liberalizing law applies to the Veteran's claim. Bladder cancer was added to the list of diseases presumed associated with exposure to contaminants in the water supply at Camp Lejeune while the Veteran's initial claim was pending. See 38 C.F.R. § 3.309 (f)(8). Where compensation is awarded pursuant to a liberalizing law, the effective date of such an award shall not be earlier than the effective date of the act. 38 C.F.R. § 3.114 (a). Although the Veteran has argued for an earlier effective date, an effective date prior to March 14, 2017 is precluded. The Veteran was first diagnosed and treated for bladder cancer in 2011, and filed his claim in 2015. However, controlling statutes and regulations provide that the effective date for a grant of service connection is 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 (b)(2)(i). Entitlement did not arise until March 14, 2017, the date bladder cancer was added to the list of conditions associated with contaminated water at Camp Lejeune. The Board considered whether service connection was warranted on a direct basis as due to contaminated water at Camp Lejeune. A VA medical opinion addressing direct service connection was obtained in July 2016. The examiner concluded that, based on a review of the specifics of the Veteran's claim such as the duration of exposure to contaminated water, the latency period prior to malignancy occurrence, the Veteran's age, gender, ethnicity, lifestyle, familial, and employment risk factors, the causation for the diagnosed bladder cancer is less likely than not caused by or a result of the Veteran's exposure to Camp Lejeune contaminated water. The examiner noted the Veteran had been at Camp Lejeune for approximately three months in 1969 and had recognized risk factors for bladder cancer, including male gender, Caucasian, smoker, and obesity. The examiner found the Veteran had a history of smoking one pack of cigarettes per day for 40 to 50 years, and had quit when he was diagnosed with bladder cancer. The examiner provided an extensive rationale and analysis that cited the Veteran's medical history and multiple studies indicating that smoking is the most important risk factor for developing bladder cancer. The examiner also analyzed National Research Council reports on Camp Lejeune exposures. After considering the studies and the Veteran's recognized risk factors for bladder cancer, including male gender, Caucasian, smoker, and obesity, the examiner concluded the weight of scientific evidence supported that it is less likely than not that the Veteran's minimal exposure to contaminated water at Camp Lejeune caused his bladder cancer. The July 2016 opinion is adequate as to whether service connection may be warranted on a direct basis. The opinion is based on consideration of the Veteran's prior medical history and cited multiple medical studies regarding the risks for bladder cancer, including exposures to contaminated Camp Lejeune water. The examiner conceded that bladder cancer was being added to the list of conditions presumed due to exposure to contaminated water at Camp Lejeune. However, the examiner determined the bladder cancer was less likely than not due to service on a direct basis. Stated another way, service connection was only warranted due to applicable presumptions. Furthermore, the Veteran's bladder cancer is not shown to have been manifest during service or within other presumptions. The Veteran has only claimed the bladder cancer as due to exposure to contaminated water at Camp Lejeune, and has not argued service connection would have been warranted on another basis. The July 2016 opinion therefore constitutes highly probative evidence weighing substantially against service connection on a direct basis. In sum, entitlement to service connection was granted for the Veteran's bladder cancer as presumed due to exposure to contaminants in the water supply at Camp Lejeune. The presumption for bladder cancer went into effect on March 17, 2014. The law provides that, where compensation is awarded pursuant to any Act or administrative issue, the effective date shall not be earlier than the effective date of such Act or administrative issue. The claim for an effective date before March 14, 2017, is denied. 2. Entitlement to a compensable initial rating for invasive bladder carcinoma. The Veteran seeks a compensable initial rating for his service-connected invasive bladder carcinoma. The invasive bladder carcinoma is rated under Diagnostic Code 7528, which applies to malignant neoplasms of the genitourinary system and typically evaluates the malignant neoplasms as 100 percent disabling. 38 C.F.R. § 4.115b, Diagnostic Code 7528. A note to Diagnostic Code 7528 states that, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, the rating of 100 percent will continue with a mandatory VA examination at the expiration of 6 months. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local reoccurrence or metastasis, rate on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. Id. Under Diagnostic Code 7528, if there has been no local reoccurrence or metastasis, the Veteran's prostate cancer shall be rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The record contains no probative evidence indicating that the Veteran has experienced any renal dysfunction because of his bladder cancer or treatments during the period under consideration. As such, the Veteran's residuals of his invasive bladder carcinoma shall be rated on voiding dysfunction. Under 38 C.F.R. § 4.115a, adjudicators are instructed to rate voiding dysfunction based upon either urine leakage, frequency, or obstructed voiding. For urine leakage, the minimum 20 percent rating requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent evaluation contemplates requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. The maximum 60 percent rating contemplates requiring the wearing of an appliance or absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. The criteria regarding urinary frequency provide that a 10 percent rating is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding intervals between one and two hours, or awakening to void three to four times per night. The maximum rating based on urinary frequency is 40 percent, which is assigned for daytime voiding intervals less than one hour, or awakening to void five or more times per night. Id. For obstructed voiding, a noncompensable disability rating is assigned for obstructed voiding where there is obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year. A 10 percent rating is warranted for obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) post void residuals greater than 150cc; (2) uroflowmetry showing markedly diminished peak flow rate (less than 10cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months. A maximum 30 percent rating is warranted where there is urinary retention requiring intermittent or continuous catheterization. Id. VA treatment records show the Veteran was diagnosed with a bladder mass in June 2011 and underwent a cytoscopy and transurethral resection of the bladder tumor in July 2011, after which he was diagnosed with bladder cancer. Records show he underwent Adriamycin induction, which was completed in October 2011. The Veteran was noted to experience a recurrence of the bladder cancer in August 2012, and he underwent a transurethral resection of the bladder tumor. Subsequent urology notes show the Veteran has not had a recurrence of his bladder carcinoma. The Veteran was provided a VA urinary tract conditions examination in May 2017. He reported being diagnosed with bladder cancer in 2011 and that he underwent surgical excision at that time, with subsequent chemotherapy for approximately eight months. He denied having any recurrence of his bladder cancer in subsequent rechecks. On examination, the examiner noted the Veteran did have a voiding dysfunction, with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times per night. However, this was found to be due to benign prostatic hypertrophy rather than the bladder carcinoma and its residuals. There was no urine leakage, the voiding dysfunction did not require the use of an appliance, and there were no signs or symptoms of obstructed voiding. There was no history of urethral or bladder calculi or other bladder and urethral conditions. The examiner noted the Veteran's bladder cancer was in remission, and that the Veteran had completed treatment in 2012 and was currently in watchful waiting status. The Veteran was provided a VA male reproductive system examination in June 2017. This examination was provided primarily for a separate claim for service connection for erectile dysfunction as secondary to the Veteran's bladder cancer. However, the examiner also noted the Veteran did have a voiding dysfunction, with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times per night. However, the examiner also found that the Veteran's voiding dysfunction was due to benign prostatic hypertrophy rather than the bladder carcinoma and its residuals. Service connection for erectile dysfunction was granted in a May 2022 rating decision, with a noncompensable rating assigned effective March 14, 2017. The Veteran did not appeal the May 2022 decision, and has not indicated that he disagrees with the ratings assigned for erectile dysfunction. The Veteran has also been granted special monthly compensation due to loss of use of a creative organ. This decision will not disturb the SMC award. The Veteran was provided another VA urinary tract examination in January 2019. The Veteran again reported that his bladder cancer was removed by transurethral resection in 2011 and then required instilled chemotherapy for several treatments that year. He also reported a recurrence or persistence of his bladder cancer in 2011 that required one more resection, but that the cancer had been in remission since. No voiding dysfunction, or any other current bladder and urethral conditions, were found. The examiner noted the Veteran's bladder cancer was in remission, and that the Veteran had completed treatment in 2012 and was currently in watchful waiting status. The only current symptom the Veteran reported was erectile dysfunction. VA treatment records during the appeals period are generally consistent with the VA examinations and do not show complaints relating to urine leakage, urinary frequency, or obstructed voiding. VA treatment records do not show current symptoms related to the invasive bladder carcinoma. Considering the foregoing, a 100 percent rating under Diagnostic Code 7528 is not warranted. The code makes clear that a 100 percent rating is assigned for malignant neoplasms of the genitourinary system, and the Veteran's bladder cancer was a malignant neoplasm of the genitourinary system. However, following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent will continue with a mandatory VA examination at the expiration of 6 months. If there has been no local reoccurrence or metastasis, the cancer is rated on residuals as voiding dysfunction or renal dysfunction, whichever is predominant. The medical evidence and lay statements demonstrate the Veteran's surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures ceased in 2012. He has not had an active bladder cancer disease process during the appeals period, nor has the cancer required such procedures as listed in Diagnostic Code 7528. The only treatments noted during the appeals period have been watchful waiting status by urologists. There has been no recurrence or metastasis during the appeals period. While the Veteran did have a recurrence in 2012, service connection was not in effect at that time. The Veteran's bladder cancer has not required surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedures during the appeals period, and there has not been any local reoccurrence or metastasis. As such, a 100 percent rating under Diagnostic Code 7528 is not warranted, and the disease the Veteran's bladder cancer is rated on residuals as voiding dysfunction. The evidence also shows that a compensable evaluation under 38 C.F.R. § 4.115a is not warranted for urine leakage, frequency, or obstructed voiding. For urine leakage, the minimum 20 percent rating requires wearing absorbent materials which must be changed less than 2 times per day. The evidence does not indicate that the Veteran wears absorbent materials due to urine leakage. The criteria for obstructed voiding also have not been met. The evidence does not show in the 2017 or 2019 VA examinations that the Veteran has obstructed voiding. The evidence does not indicate obstructive symptomatology with or without stricture disease requiring dilation 1 to 2 times per year to warrant a noncompensable rating for obstructive voiding, nor is there obstructed voiding with marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) to warrant a 10 percent rating. A 30 percent rating for obstructed voiding requires urinary retention requiring intermittent or continuous catheterization, which has not been demonstrated. The May 2017 and June 2017 examinations did show the Veteran had a voiding dysfunction, with daytime voiding interval between 2 and 3 hours and nighttime awakening to void 3 to 4 times per night. This is consistent with the criteria for a 20 percent rating for voiding dysfunction, which is warranted for daytime voiding intervals between one and two hours, or awakening to void three to four times per night. However, the May 2017 and June 2017 examiners determined the Veteran's voiding dysfunction was related to his benign prostatic hypertrophy rather than being a residual of his bladder cancer. There is very little evidence contradicting the examiners' findings. The VA medical records do show the Veteran has had an enlarged prostate and hyperplasia of the prostate during the appeals period. Nevertheless, VA medical records are negative for complaints or diagnoses attributing a voiding dysfunction to the Veteran's bladder cancer or residuals of his treatment for bladder cancer during the appeals period. Notably, the Veteran did not report voiding dysfunction during the January 2019 examination, and none was found. To the extent the Veteran has had a voiding dysfunction, the evidence weighs persuasively against finding the dysfunction was due to the Veteran's bladder cancer. Instead, the dysfunction was attributed to prostatic hypertrophy. The Veteran has reported that his bladder cancer treatments and surgeries affected his energy levels and stamina. However, malignant neoplasms of the genitourinary system such as bladder cancer are rated as voiding dysfunction or renal dysfunction where there has been no local reoccurrence or metastasis. The evidence does not reveal renal dysfunction related to the Veteran's bladder cancer, and the probative medical evidence weighs persuasively against a compensable evaluation for urine leakage, urinary frequency, or obstructed voiding. Finally, in a July 2023 presentation, the Veteran's representative requested that the Board remand this matter for a new VA examination and opinion to address whether an acquired psychiatric condition is secondary to the Veteran's invasive bladder carcinoma. The Board notes that service connection for a psychiatric disorder has been denied in rating decisions issued in August 2016 and February 2019. The Veteran did not appeal those decisions. Furthermore, the Veteran's Notice of Disagreement and VA Form 9 that initiated this appeal cannot be construed to include service connection for an acquired psychiatric disorder. While the Board has construed the Notice of Disagreement and VA Form 9 liberally to include claims for an earlier effective date and an increased rating for invasive bladder carcinoma, the Veteran did not refer to a psychiatric disorder in these filings or any accompanying statements. The Veteran has not otherwise indicated that he wished to pursue an appeal for service connection for an acquired psychiatric disorder. The issue of entitlement to service connection for an acquired psychiatric disorder, either directly due to service or secondary to invasive bladder carcinoma, is not part of this appeal and will not be remanded. Should the Veteran wish to file a supplemental claim for service connection for an acquired psychiatric disorder, he may do so by filing the appropriate forms to the Regional Office. In sum, the criteria for a compensable evaluation for the Veteran's invasive bladder carcinoma have not been met or more nearly approximated. The probative evidence does not establish local reoccurrence or metastasis of the cancer since the Veteran's treatments ended in 2012. The probative evidence does not indicate that the Veteran has experienced any renal dysfunction because of his bladder cancer or treatments. The criteria for a rating based on urine leakage, urinary frequency, or obstructed voiding. The Board considered the benefit of the doubt doctrine. However, the evidence weighs persuasively against the claim, and the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.