Citation Nr: 1305925 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-09 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than October 10, 2006, for the award of service connection for prostate cancer. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1970, with service in Vietnam from June 21, 1969 to May 31,1970. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In August 2009, the Veteran presented testimony before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is of record. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. FINDINGS OF FACT 1. The probative evidence of record demonstrates that prostate cancer was diagnosed in August 1998. 2. The Veteran's initial claim for prostate cancer was received on October 10, 2006. The record contains no statement, communication, or other information from the Veteran, prior to October 10, 2006, that can reasonably be construed as constituting a claim for service connection for prostate cancer. CONCLUSION OF LAW The criteria for an effective date earlier than October 10, 2006, for the award of service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.114, 3.155, 3.159, 3.400, 3.816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act Under 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (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, 486 (2006). But "[i]n 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." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the effective date claim, VA's duty to notify has been satisfied or. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records were obtained in connection with the service connection claim. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. As an initial matter, the Board finds that the Veteran's claim for an earlier effective date is not prohibited as a "freestanding claim." See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, the Veteran's December 2007 request for an earlier effective date was received within one year of the March 2007 rating decision granting service connection for prostate cancer. Thus, the Board accepts the December 2007 claim as a notice of disagreement with respect to the effective date assigned for prostate cancer in the March 2007 rating decision. As such, the March 2007 rating decision is not final, and the Board will consider the Veteran's claim for earlier effective date on the merits. The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). A claim is defined as "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) (2012). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Additionally, in cases involving presumptive service connection due to herbicide exposure, VA has promulgated special rules. See 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). Such veterans are members of the Nehmer class. A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. See 38 C.F.R. § 3.816. A covered herbicide disease includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. 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). The Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a Vietnam veteran as defined in the regulations. See 38 C.F.R. § 3.307(a)(6). Additionally, prostate cancer meets the definition of covered herbicide disease. Accordingly, the Veteran's appeal will be considered under these special rules. Certain effective date rules apply in the following situations: 1) if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or 2) if there was a claim for benefits pending before VA between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. If the class member's claim for disability compensation for the 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 status or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. A claim will be considered a claim for compensation for a particular covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability. 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. § 3.400. 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, the Veteran filed a claim for service connection for prostate cancer, received on October 10, 2006. In March 2007, the RO granted service connection for prostate cancer based on presumed exposure to herbicides during his service in Vietnam. The RO assigned an effective date of October 10, 2006 for the award of service connection for prostate cancer, the date of receipt of claim In various written statements and during his August 2009 RO hearing, the Veteran expressed his belief that he is entitled to an effective date earlier than October 10, 2006, as the medical evidence establishes diagnosis of prostate cancer as early as 1998, with possible onset earlier than that date. The Veteran also indicated that he did not know that he was entitled to VA compensation benefits for his prostate cancer based on his exposure to herbicides, and if he had known at an earlier time, he would have filed a claim before 2006. Here, the record does not indicate that the Veteran was denied service connection for prostate cancer for the period from September 25, 1985, and May 3, 1989. As such, the provisions of 38 C.F.R. § 3.816(c)(1) do not apply. Moreover, 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 October 10, 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). In fact, the only documents associated with the claims file during this time period relate to education benefits. The Veteran did not submit any statement or medical records referencing any disability, let alone prostate cancer, until October 2006. Accordingly, 38 C.F.R. § 3.816(c)(2) 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). Under 38 C.F.R. § 3.114, 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); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In this case, the first evidence indicating prostate cancer was in 1998, after the effective date of the liberalizing law which added prostate cancer as a presumptive disability. Because 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. The Board acknowledges the submitted medical evidence reflecting elevated PSA levels prior to 1998, which the Veteran contends is suggestive of earlier diagnosis. Also of record is an August 2009 report from Dr. T. indicating that although the Veteran was not definitively diagnosed with prostate cancer until 1998, he had symptoms in 1995 consistent with prostate difficulties and inflammation. Dr. T. opined that it is most likely that the cancer was present in the 1995-1996 time frame but masked somewhat by inflammation and prostatitis. The Board finds that this evidence is outweighed by the other evidence of record. An October 1998 report reflects that the Veteran initially underwent a needle biopsy of the prostate in November 1997 when his PSA of 5. This biopsy was negative. Additionally, a January 1998 needle biopsy report reflected that there was no malignancy in either the right or left prostate tissue. In August 1998, the Veteran's PSA rose to a level of 6.6. A repeat needle biopsy revealed adenocarcinoma located in the core of the right lobe at this time. He underwent prostatectomy in November 1998. Thus, there is no evidence of a definitive diagnosis until 1998. Despite elevated PSA levels and Dr. T.s' indication of onset sometime in 1995 or 1996, biopsies were normal until August 1998, and the earlier presence of cancer is not indicated. The Board thus cannot conclude that the evidence supports the presence of prostate cancer at the time of the November 1996 liberalizing law which added prostate cancer as a presumptive disability. The Board has also considered the Veteran's contention that he was unaware that he was entitled to compensation for his prostate cancer, and that he would have filed at an earlier time had VA informed him of this entitlement. However, the applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for service connection with VA if he seeks that benefit. The Board emphasizes that, while VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Thus, despite the Veteran's contentions to the effect that he did not file for compensation at an earlier time due to VA's failure to provide information regarding these benefits, it was his responsibility to file a claim for service connection for prostate cancer. In this case, the record does not show that the Veteran filed a claim for service connection for prostate cancer prior to October 2006. To the extent that the Veteran contends that his treatment records document treatment for prostate cancer well prior to October 2006, no such assertions provide for the allowance of an earlier effective date. Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b). Here there is no such prior disallowance of this claim; an earlier effective date on this basis is not warranted. Finally, the record simply contains no statement or communication from the Veteran prior to October 10, 2006 that constitutes a pending claim for service connection for prostate cancer. As the effective date is the later of the date of claim and date of entitlement, and entitlement arose in 1998, no earlier date is warranted. Therefore, considering all relevant law and regulations, there is no provision under the law to assign any earlier effective date for the award of service connection for prostate cancer prior to the October 10, 2006 date of receipt of claim. Accordingly, the Board must deny the claim for entitlement to an earlier effective date for service connection for prostate cancer. As the preponderance of the evidence is against this claim, 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). ORDER Entitlement to an effective date earlier than October 10, 2006, for the award of service connection for prostate cancer is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs