Citation Nr: 1237186 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 11-28 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date earlier than August 22, 2006, for the award of service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from February 1966 to February 1969 and from November 1979 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. In April 2011, the Veteran appeared at a hearing at the RO before a local hearing officer. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran was found to have an elevated PSA reading, which his private physicians have stated is indicative of the initial onset of prostate cancer, on August 7, 2001. 2. The Veteran's initial claim for prostate cancer was received on August 22, 2006. CONCLUSION OF LAW The criteria for an effective date earlier than August 22, 2006, for the award of service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.114, 3.155, 3.159, 3.400, 3.816 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that a date earlier than August 22, 2006, should be established for the grant of service connection for prostate cancer. Having carefully considered the claim in light of the record and the applicable law, the Board must deny the appeal. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011). Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2011). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The Veteran has argued that the date of his elevated prostate cancer reading, which has been found to be indicative of the initial onset of prostate cancer, August 7, 2001, should be the effective date for the award of benefits as this evidence should be construed as an informal claim. With regard to the Veteran's first argument, VA's possession of medical evidence showing a diagnosis of prostate cancer may not provide a basis for the assignment of an earlier effective date. Medical evidence alone cannot be an "informal claim", there must be claimant intent to apply for a benefit. Under 38 C.F.R. § 3.155(a), an informal claim consists of any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of the claimant who is not sui juris. In other words, a claim consists of "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998). The medical evidence of record shows that the Veteran was found to have a elevated PSA level reading in August 2001. It does not show an intent to apply for service connection for prostate cancer, therefore it may not be considered an informal claim. 38 C.F.R. § 3.155(a). In this case, the Board notes that the Veteran has testified as to his belief that had he been informed that he had an elevated PSA reading in August 2001, he would have taken action to file a claim for service connection for prostate cancer at that time. The Board further observes that the Veteran has submitted medical statements from his private physicians, dated in March 2011, that the August 2001 elevated PSA reading was probably the initial onset of his prostate cancer. While the Board is sympathetic the Veteran's beliefs, it is bound by the above laws and regulations concerning earlier effective dates. The Board does note that the Veteran has filed a claim for damages under Federal Tort Claims Act as it relates to the nondisclosure of his elevated PSA reading in August 2001. Another possible alternative theory is that an effective date can be up to one year earlier than the date of a claim if an award is made pursuant to a change in law. 38 U.S.C.A. § 5110(g). If the revised version of the regulation is more favorable, however, the retroactive reach of the new regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of the change. See VAOPGCPREC 3-2000 (Apr. 10, 2000); see also 38 C.F.R. § 3.114. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i) (2011). The term "covered herbicide diseases" includes prostate cancer. 38 C.F.R. § 3.816(b)(2)(i) (2011). The regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were 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. 38 C.F.R. § 3.816(c). The effective date of the regulation which added prostate cancer as a disease presumptively due to in-service exposure to herbicides is November 7, 1996. See 61 Fed. Reg. 57,586-87 (November 7, 1996). If a Nehmer class member's claim for compensation for a covered herbicide disease was either pending before VA on May 3, 1989 or was received by VA between that date and the effective date of the statute establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date the claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c). In this case, the Veteran did not submit a claim for prostate cancer between May 3, 1989 and November 7, 1996, the effective date for the regulation which added prostate cancer as a disease presumptively due to in-service exposure to herbicides. Prior to August 22, 2006, the date of the Veteran's claim, there is not a single document of record that may reasonably be construed as a formal or informal claim for service connection for prostate cancer. See 38 C.F.R. §§ 3.151(a), 3.155(a) (2011). Accordingly, 38 C.F.R. § 3.816 does not apply, and the effective date of an award shall be determined according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). Moreover, a claimant cannot receive retroactive payment based upon a prospectively effective liberalizing law or a liberalizing VA issue unless the evidence establishes that the "claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law of VA issue and that such eligibility existed continuously from that date to the date of the claim or administrative determination of entitlement." See 38 C.F.R. § 3.114(a) (2011); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In this case, the first medical evidence suggesting the presence of prostate cancer was in August 2001, after the effective date of the liberalizing law which added prostate cancer as a presumptive disability. Since the Veteran did not meet all of the criteria as of the effective date of the liberalizing law (November 7, 1996), the regulations provide that the effective date of service connection shall be the date of receipt of the claim. As noted above, the effective date of the regulation which added prostate cancer as a disease presumptively due to in-service exposure to herbicides is November 7, 1996. The Veteran, however, did not file his initial claim for service connection for prostate cancer until August 2006, more than one year after the effective date of the liberalizing law. Therefore, considering all relevant law and regulations, there is no substantiation under the law to assign any earlier effective date of service connection. The Veteran contends that he had the condition of prostate cancer as of August 2001, and that the fact that this condition existed at this early point supports the earlier award of benefits. Unfortunately, the dictates of the law are such that without any pending claim for service connection before August 22, 2006, or for that matter a decision adjudicating such a claim between September 25, 1985 and May 3, 1989 under the Nehmer case holdings, an earlier effective date cannot be supported. The pertinent law is binding upon the Board's determination. See 38 U.S.C.A. § 7104(c). Accordingly, the Board must deny the issue on appeal for entitlement to an earlier effective date for service connection for prostate cancer. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The earliest possible date permitted by the effective date regulations has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a 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, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. The Board does note, however, that the Veteran was notified of the information and evidence necessary to substantiate a claim for an earlier effective date in August 2010. The letter notified the Veteran of the information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of this letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Board finds that there has been compliance with the assistance requirements of the VCAA. All available VA and private treatment records have been obtained. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements; his testimony; and arguments presented by the representative organization. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. ORDER Entitlement to an effective date earlier than August 22, 2006, for the grant of service connection for prostate cancer is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs