Citation Nr: 1119210 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 09-49 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date prior to February 12, 2009, for the grant of service connection for lung cancer. REPRESENTATION Veteran (Appellant) represented by: Marine Corps League ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from December 1965 to November 1968 and from January 1971 to November 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. By that rating action, the RO, in part, granted service connection for lung cancer; an initial 100 percent evaluation was assigned, effective February 12, 2009--the date VA received the Veteran's initial claim for service connection for this disability. The Veteran appealed the RO's assignment of a February 12, 2009 effective date for the award of service connection for the above-cited disability to the Board. FINDING OF FACT On February 12, 2009, VA received the Veteran's informal claim for service connection for lung cancer, and no evidence of record indicates any formal or informal claims prior to that date. CONCLUSION OF LAW The criteria for an effective date prior to February 12, 2009 for the grant of service connection for lung cancer have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. See, also, the United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. Here, the appeal arose from the Veteran's disagreement with the RO's assignment of an effective date of February 12, 2009 assigned after the grant of service connection for lung cancer in the appealed rating action. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007);VAOPGCPREC 8-2003. Therefore, no further notice is needed under the VCAA. The Court has also held that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. See Goodwin v. Peake, 22 Vet. App. 128 (2008). In this case, the effective date claim on appeal was substantiated after the enactment of the VCAA, and the Veteran has not alleged any prejudice by any notice defect. The Board also concludes that VA has met its duty to assist the Veteran in substantiating his earlier effective date claim. The Veteran has not specified any evidence concerning the instant effective date claim that has not been obtained. Accordingly, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits Analysis The Veteran seeks an effective date earlier than February 12, 2009 for the award of service connection for lung cancer. He contends that because VA diagnosed him with lung cancer in November 2008, service connection should be awarded from that time. (See VA Form 9, dated and signed by the Veteran in December 2009). The effective date of an evaluation and award of compensation on an original claim for compensation, such as here, will be the day following separation from active duty service or the date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). Here, the RO received the Veteran's informal claim for service connection for lung cancer on February 12, 2009. A review of the record does not show that the Veteran submitted a claim, formal or informal, for service connection for lung cancer within one year from his discharge from active military service on November 30, 1968 or November 25, 1977. On VA Form 21-526, Veteran's Application for Compensation or Pension, received by VA on December 1, 2004, the Veteran clearly indicated that he was seeking VA compensation for diabetes mellitus, type 2, secondary to Agent Orange exposure and peripheral neuropathy of the feet, secondary to diabetes mellitus." The Board did not receive any claim, formal or informal, from the Veteran expressing his intent to seek compensation benefits for lung cancer until February 12, 2009. (See VA Form 21-4138, Statement in Support of Claim, received by the RO on February 12, 2009). The Board recognizes the Veteran's argument that because VA was treating him for, and had diagnosed lung cancer in November 1998, an award of service connection for the above-cited disability should be established from that time. The Veteran is essentially contending that he filed an informal claim for benefits for service connection for lung cancer. Under 38 C.F.R. § 3.157 (2010), a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable, as opposed to a claim for original compensation, such as in the Veteran's case. Thus, an earlier effective date for the award of service connection for lung cancer is not warranted under the above-cited regulation. Overall, the weight of the evidence is against the claim for an effective date prior to February 12, 2009 for the award of service connection for lung cancer. In short, prior to February 12, 2009, VA did not receive from the Veteran a claim, formal or informal, for service connection for lung cancer. Thus, the Board concludes that an earlier effective date is not warranted in this case under VA regulations governing effective dates for awards for service connection. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. ORDER An effective date prior to February 12, 2009 for the award of service connection for lung cancer is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs