Citation Nr: 0836040 Decision Date: 10/21/08 Archive Date: 10/27/08 DOCKET NO. 06-07 222A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an effective date earlier than October 29, 2002, for the award of service connection for prostate cancer as a result of herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from November 1969 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In that decision, the RO granted service connection for prostate cancer and assigned an initial 20 percent evaluation effective October 29, 2002. The veteran has appealed the effective date of award assigned. The veteran failed to report for a video-conference hearing before the Board scheduled in May 2007. The Board will proceed as if the hearing request has been cancelled. 38 C.F.R. § 20.704(d). The Board notes that, in an Informal Hearing Presentation dated October 2008, the veteran's representative contended that the RO committed clear and unmistakable error (CUE) in an October 2001 rating decision which denied a claim of entitlement to nonservice-connected pension. This issue, which has not been developed and adjudicated by the RO, is referred to the RO for appropriate action. FINDING OF FACT The veteran first filed a formal claim for service connection for prostate cancer on October 29, 2002, and there are no communications prior to this time which may be considered a formal or informal claim. CONCLUSION OF LAW Entitlement to an effective date earlier than October 29, 2002, for the award of service connection for prostate cancer as a result of herbicide exposure is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.155, 3.400, 3.816 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In this case, there is no dispute that the veteran filed a formal claim for service connection for prostate cancer on October 29, 2002. The RO has assigned the effective date of award effective to this filing. The veteran argues for an earlier effective date of award based on the premise that he filed a claim for non-service connected pension on August 13, 2001, which should be construed as an application of service connection for prostate cancer. Alternatively, it is argued that the RO received notice on September 21, 2001, that the veteran received VA treatment for prostate cancer, and that his prior service in Vietnam raised an informal service connection claim, as prostate cancer is a diseases subject to presumptive service connection for veterans who served in Vietnam during the Vietnam Era. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board has carefully reviewed the documents of record prior to the October 29, 2002 date of award and finds, as a matter of law, that the veteran had not filed an earlier claim for service connection for prostate cancer. The August 13, 2001, claim for non-service connected pension, which also included a claim for an increased rating for service connected left hand disability, simply contains no language indicating an intent to seek service connected benefits for prostate cancer. In fact, this document did not even reference prostate cancer as a current disability. The Board has also considered the argument that the RO accept the veteran's VA treatment records, showing an inpatient admission on September 20, 2001 and/or initial notice of VA treatment for prostate cancer on September 21, 2001, as an informal claim for service connected benefits. Notably, a VA treatment record may only serve as an informal claim for benefits once a formal claim for compensation has been allowed. 38 C.F.R. § 3.157. This provision therefore, does not apply. The Board has also considered the provisions of 38 C.F.R. § 3.155 inasmuch as it is argued that VA should have implied a service connection claim for prostate cancer based upon his known prior service in Vietnam, and that such diseases may be presumptively service connected under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). The Board notes that the mere presence of medical evidence of a disability does not show an intent on the veteran's part to seek service connection and therefore does not constitute a claim; rather, the veteran must assert a claim either expressly or impliedly. VA is not required to conjure up issues not raised by the claimant. Brannon, 12 Vet. App. 32 (1998). Therefore, the Board declines to view any references to prostate cancer in his medical records as a claim for VA compensation based on prostate cancer. The Board further notes that VA liberalized its regulations to add prostate cancer to the list of presumptive diseases associated with herbicide exposure effective November 7, 1996. See 61 Fed. Reg. 57,586 (November 7, 1996). Thus, this is not a claim where an earlier effective date of award can be premised on the provisions of 38 C.F.R. § 3.114(a), which provides for an earlier effective date in certain circumstances based on claims received within one year of the regulatory change. See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1378 (Fed. Cir. 2002). Finally, the Board is cognizant that, with respect to claims governing effective dates for service connection for diseases presumed to have been caused by herbicide or Agent Orange exposure, VA has issued a special regulation to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. 38 C.F.R. § 3.816. See also 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). However, the veteran is not a Nehmer class member since he had not been previously denied compensation for prostate cancer nor had a claim of service connection been received prior to October 29, 2002. As the veteran cannot be deemed a Nehmer class member, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). Based upon the above, the Board must find that the veteran does not meet the criteria for establishing an effective date prior to October 29, 2002, for the award of service connection for prostate cancer. There is no doubt of material fact to be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). Rather, based upon the undisputed facts of record, the claim must be denied as a matter of law. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Here, the veteran is challenging the effective date assigned following the grant of service connection. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Nonetheless, the Board notes that the RO provided the veteran a letter in March 2006 notifying him of the criteria for establishing an effective date of award. Thus, although further notice was not required, the RO in fact did provide additional notice consistent with the holding in Dingess. The Board further notes that the earlier effective date claim on appeal involves a retroactive review of the documents of record prior to the effective date of award assigned. There are no issues of fact in dispute which must be resolved to decide this case, rather the case involves a review of the documents and statements of record to determine whether the legal standard for an earlier filed claim has been met. This case ultimately involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Thus, further VCAA notice is not required. The provisions of 38 U.S.C.A. § 5103A require VA to provide assistance to the claimant in the development of the claim. In this case, the record contains all records relevant to his claim on appeal. The veteran has not alleged the existence of any documents submitted to VA which could establish that a claim of service connection for prostate cancer had been filed prior to October 29, 2002. For the reasons specified above, any additional private or VA treatment records, or Social Security records, could not provide a basis to grant this claim. See 38 C.F.R. §§ 3.155, 3.157. The issue in this is not the actual onset of disease but, rather, the legal issue of when a claim for service connected benefits was filed with VA. Accordingly, VA has no further duty to assist the veteran in the development of his claim. ORDER The claim of entitlement to an effective date earlier than October 29, 2002, for the award of service connection for prostate cancer as a result of herbicide exposure is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs