Citation Nr: 1313488 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-48 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date prior to February 24, 2010, for service connection for prostate cancer. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Providence, Rhode Island Regional Office (RO) of the Department of Veterans Affairs (VA). In his substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge. An August 2012 letter informed the Veteran that his hearing was scheduled for later in August 2012. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDING OF FACT The record contains no statement or communication from the Veteran received by VA prior to February 24, 2010, that constitutes an earlier, pending claim for service connection for prostate cancer. CONCLUSION OF LAW The claim for an effective date earlier than February 24, 2010, for the award of service connection for prostate cancer, is without legal merit. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). There are some claims to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). With respect to the Veteran's claim for an earlier effective date for the award of service-connection, no VCAA notice is necessary because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the law and regulations governing effective dates if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Additionally, the Veteran's appeal arises from disagreement with the effective date following the grant of service-connection. The Court of Appeals for Veterans Claims (Court) has 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. Goodwin v. Peake, 22 Vet. App. 128 (2008). The question of whether further notice for such "downstream" issues as an effective date claim is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedential opinion, the General Counsel held that, in such circumstances, a SOC was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the required SOC was issued in November 2010, and no additional notice is required. In any event, the Board notes that Veteran was in fact provided notice under the VCAA and Dingess regarding effective dates in a letter dated in March 2010. Concerning VA's duty to assist in the development of the Veteran's effective date claim, the Board notes that the Veteran's service treatment records, post-service treatment records, and lay statements of argument have been obtained. As was alluded to above, the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, which will be discussed below. There is no indication in the record that additional evidence relevant to the issue decided herein is available but absent from the claims folder. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the issue on appeal has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2011). Accordingly, the Board will proceed to a decision. II. Legal Criteria Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). This rule holds true in cases of de novo claims for service connection, except when a claim is received within one year after separation from service, in which case the effective date of the award is the day following separation from service. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400, 3.400(b)(2)(i) (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp. 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). III. Analysis The Veteran and his representative claim that an effective date prior to February 24, 2010, is warranted for the award of service connection for prostate cancer. The Veteran has specifically asserted that his award should become effective August 11, 2009, as that is the date that he furnished a VA Form 21-526, Veteran's Application for Compensation and/or Pension to his accredited representative. Based upon a complete review of the evidence on file, and for reasons and bases expressed immediately below, the Board finds that the currently assigned effective date of February 24, 2010 is the earliest effective date assignable for the award of service connection. As has been discussed in the law and regulations section above, the assignment of an effective date for service connection is in essence governed by the date of filing with VA of a claim therefor. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board's inquiry thus is limited by operation of law to whether a claim of entitlement to service connection for prostate cancer was filed with VA before the current effective date of the award in question, February 10, 2010. VA's statutory duty to assist means that VA must liberally read all documents submitted to include all issues presented. See Verdon v. Brown, 8 Vet. App. 529, 533 (1996); EF v. Derwinski, 1 Vet. App. 324, 326 (1991). Crucially, however, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the VA must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant. The Court has further held that VA is not held to a standard of prognostication when determining what issues are presented. See Talbert v. Brown, 7 Vet. App. 352, 356- 57; Allin v. Brown, 6 Vet. App. 207, 213 (1994): "[t]here must be some indication . . . that [a claimant] wishes to raise a particular issue . . . . The indication need not be express or highly detailed; it must only reasonably raise the issue." The Board has carefully reviewed the record and can identify no communication from the Veteran received by VA which may reasonably be considered to be a claim of entitlement to service connection for prostate cancer prior to the claim received by VA on February 24, 2010. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits.] The Veteran has submitted a VA form 21-4138 which states "I am filing a claim for SCD for Prostate Cancer due to Agent Orange." The form contains a handwritten indication that it was signed by the Veteran on August 11, 2009. The Veteran has also submitted a VA form 21-526 which reflects that he was initiating a claim for service connection for prostate cancer. This form also contains a handwritten indication that it was signed by the Veteran on August 11, 2009. However, while the documents were apparently completed by the Veteran in August 2009 neither document has a date stamped evidencing receipt by the VA RO prior to February 24, 2010. As such, for VA compensation purposes, these forms are considered as having been received by VA on February 24, 2010. In December 2010, the Veteran's accredited representative asserted that the Veteran's claim for service connection was originally filed on August 8, 2009. He said that at that time, their contact officer was having serious heart problems, and they had temporary help covering the office. He remarked that their contact officer returned to work in January 2010, and as no duty to assist letter had been received by the Veteran at that time, they started to make follow-up inquiries. Emails and a memo are of record which reflect that the organization representing the Veteran had internal discussions regarding the state of the Veteran's claim in February 2010. The Veteran's accredited representative attested that the Veteran's original claim was mailed to the Providence VARO in a timely fashion. The Board has carefully considered the Veteran's representative's contention that the Veteran's claim was mailed to VA in a timely fashion in August 2009. Unfortunately, the original copies of the Veteran's claim for service connection for prostate cancer are date stamped as being received by the Providence RO on February 24, 2010. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." See United States v. Chemical Foundation, Inc., 272 U. S. 1, 47 S. Ct. 1 (1926). The Court has found that the presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties. This presumption of regularity applies equally to VA's RO actions. See Ashley v. Derwinski, 2 Vet. App. 307 (1992); Mason v. Brown, 8 Vet. App. 44 (1995); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Unfortunately, there is no evidence other than the Veteran's and the Veteran's representative's contentions to indicate that VA received a claim for service connection for prostate cancer from the Veteran at any point before February 24, 2010. The assertions of the Veteran and the Veteran's representative, standing alone, are not sufficient to rebut the presumption of regularity. See Butler, supra. It is clear from the Veteran's statements that he sincerely believes that when he submitted his materials to the Massachusetts Department of Veterans Services in August 2009, he thought that he was submitting his claim to the VA. Unfortunately, the Massachusetts Department of Veterans Services is not the VA. The effective date for an award of disability compensation is the date of receipt of the claim by VA unless the claim is received within one year after the veteran's separation from service. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). As the Veteran separated from service on August 31, 1967, and VA received his claim on February 24, 2010, the claim was not received by VA within one year after the Veteran's separation from service. Therefore, the effective date for service connection for prostate cancer is the date the claim was received by VA-February 24, 2010. Accordingly, for the reasons stated above, the Board finds the preponderance of the evidence is against a grant of an effective date earlier than February 24, 2010, for the award of service connection for prostate cancer since there was no written evidence of an intent by the Veteran (or a representative of the Veteran) to file a claim for service connection for the disability that was received by VA prior to this date. See 38 C.F.R. § 3.155(a) and (b). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to February 24, 2010, for service connection for prostate cancer is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs