Citation Nr: 1317947 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 10-46 901 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than June 22, 2005, for the award of service connection for residuals of prostate cancer. (The issues of entitlement to a disability rating in excess of 20 percent for the period from June 22, 2005, to May 16, 2011, and to a rating in excess of 40 percent from May 17, 2011, for service-connected residuals of prostate cancer are the subject of a separate appellate decision). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from June 1966 to April 1968. This matter comes before the Board of Veterans' Appeals on appeal from an October 2005 rating decision of the VARO in Philadelphia, Pennsylvania, that granted service connection for residuals of prostate cancer associated with herbicide exposure and granted a 10 percent evaluation, effective June 22, 2005, the date of receipt of the claim for disability benefits. The case was previously before the Board in December 2009 at which time it was remanded in pertinent part for procedural purposes. The requested development has been accomplished and the case has been returned to the Board for appellate review. FINDINGS OF FACT 1. The initial claim for service connection for residuals of prostate cancer was received on June 22, 2005. 2. There is no communication submitted prior thereto that can be construed as an informal claim for service connection for residuals of prostate cancer. CONCLUSION OF LAW There is no legal entitlement to an effective date earlier than June 22, 2005, for the grant of service connection for residuals of prostate cancer. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board notes that in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations that are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations provide, upon the submission of a substantially complete application of benefits, an enhanced duty on the part of VA to notify a claimant of any information and evidence needed to substantiate a claim. The Veteran is to be informed what evidence VA will obtain or assist in obtaining and what evidence and information he or she is responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). By way of various letters dated throughout the course of the appeal, the Veteran was apprised by the effective date elements for claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (2007). The Board notes there has been essential compliance with the mandates of the VCAA throughout the course of the appeal. Medical records, both private and VA, have been associated with the claims file. The case was previously before the Board in 2009 at which time it was remanded for further development. The Board therefore finds that all notification and development adequate for an equitable determination of the appeal has been accomplished. Accordingly, appellate review may proceed at this time. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Earlier Effective Date The assignment of effective dates and awards are generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, and a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and award of compensation or on a claim reopened after final disallowance, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400(a) (2012). The effective date for the grant of service connection for disability compensation is the "day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (b0 (2). With respect to the phrase "the date entitlement arose," the Court has stressed what that phrase does not mean. In McGrath v. Gober, 14 vet. App. 28, 35 (2000), the Board had found that the earliest date a VA examiner had diagnosed posttraumatic stress disorder as the "date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. It stressed that the date of medical evidence is irrelevant where an initial service connection claim is pending, even if it was submitted over 20 years after the time period in question. Id. See also LaLonde v. West, 12 Vet. App. 377 (1999) (stressing that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection). A claim that specifically identifies the benefit sought must be filed in order to obtain such benefit. 38 U.S.C.A. § 5101(a); see Mitscher v. West, 13 Vet. App. 123, 127 (1999). A "claim" is defined by the VA regulations 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). An informal claim is "any communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). 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. VA must look to all communications from a claimant that may be interpreted as an application for 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). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Servello, 3 Vet. App. at 200. In the present case, the Veteran's original claim for service connection for prostate cancer was received on June 22, 2005. By rating decision dated in October 2005, service connection for residuals of prostate cancer was granted. A 10 percent rating was assigned, effective June 22, 2005, the date of receipt of the claim for benefits. The Veteran was informed of his appellate rights. In November 2005, the Pittsburgh RO received a statement from the Veteran titled Notice of Disagreement. In that communication, the Veteran stated that he did not understand why he was not given a period of "100 percent rating for radiation therapy in 2004 for my prostate." However, a thorough review of the record reflects that no communication was ever filed by him with regard to prostate cancer prior to June 2005 that in any way indicated an intent to apply for service connection for a prostate disorder. The Board notes that a claim must identify the benefit sought. See Brannon v. West 12 Vet. App. 32, 34 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit when no intention to raise it was expressed" and citing Talbert v. Brown, 7 Vet. App. 352, 356, 747 (1995), for the proposition that VA is not required to do a "prognostication" but to review issues reasonably raised by the substantive appeal). While VA must interpret a claimant's submissions broadly, it is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra; Talbert, supra. While the Veteran's prostate cancer may have been present for some time before 2005, the pertinent regulations provide that the appropriate effective date is the late of the date of receipt of claim (June 22, 2005) or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (b) (2). The Veteran's treatment records document long- standing treatment for a number of conditions. However, while the cancer may have been present for some time prior to June 2005, as noted above, the pertinent regulations provide that the appropriate effective date is the later of the date of receipt of claim or the date entitlement arose. The law is controlling and not the facts. The appeal for an earlier effective date than June 22, 2005, for the grant of service connection for prostate cancer residuals must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than June 22, 2005, for the award of service connection for residuals of prostate cancer is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals