Citation Nr: 1334517 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-05 554 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than February 13, 2008, for the grant of service connection for prostate cancer. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1968 to October 1969. This appeal to the Board of Veteran's Appeals (Board/BVA) is from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, granted his claim of entitlement to service connection for prostate cancer based on it being the presumptive result of his presumed exposure to Agent Orange during his service. The RO assigned an initial 100 percent rating for this disability retroactively effective from March 12, 2008, on the premise that was the date of receipt of his claim for this condition. In response, he submitted a Notice of Disagreement (NOD) in March 2009 arguing the effective date should go back to March 2003 when his prostate cancer was first detected. The RO denied his claim for an earlier effective date in a December 2009 Statement of the Case (SOC). He then filed a timely Substantive Appeal to the Board (VA Form 9) in February 2010 to complete the steps necessary to perfect his appeal of this claim to the Board. See 38 C.F.R. § 20.200 (2013). In this appeal, he argued that that the effective date for his service-connected prostate cancer should at least be February 13, 2008, because that was when he first contacted VA via telephone regarding filing a claim. He submitted several pieces of evidence to support his claim, including a personal notation showing he had called VA on that particular date and had left a message regarding his intention on filing a claim for this disability. Based on this new evidence, the RO issued a subsequent rating decision in September 2010 granting an earlier effective date of February 13, 2008, but just with a 0 percent (i.e., noncompensable) rating until the increase to 100 percent as of March 12, 2008. The RO's reasoning for the noncompensable rating was that, prior to March 12, 2008, there were no medical symptoms present to warrant anything higher under the applicable diagnostic code. Because, however, the Veteran had sought an even earlier effective date back to March 2003 initially and even more recently had stated he wanted an effective date "no later" than February 13, 2008, his appeal continued even after the September 2008 rating decision granting this slightly earlier effective date, and resultantly was certified to the Board in August 2012. Later that year, in October 2012, in support of his claim for an even earlier effective date, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). FINDINGS OF FACT 1. The Veteran's prostate cancer has been a service-connected disability effectively since February 13, 2008, which was when he first indicated he was filing a claim of entitlement to benefits for this specific condition. 2. Although his prostate cancer had been first diagnosed several years earlier, in March 2003, there is no indication he actually filed a claim for this condition until February 13, 2008. CONCLUSION OF LAW The criteria are not met for an effective date earlier than February 13, 2008, for the grant of service connection for the prostate cancer. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim upon receipt of a complete or substantially complete application. These VCAA notice requirements apply to all elements of a claim, including, when the claim is for service connection, the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 438 F.3d 1311 (2007). This particular claim is what amounts to a "downstream" issue arising out of the original service-connection claim. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Veteran was provided a letter in August 2008 that satisfied all notice requirements of § 3.159 and defined by Dingess and Pelegrini as concerning his "downstream" claim. Specifically, it covered what the evidence must show to establish his entitlement to service connection and explained how VA determines a downstream disability rating and effective date when service connection is granted. Moreover, in a situation as here where the claim arose in the context of the Veteran trying to establish his entitlement to service connection for a disability, and VA provided him the required notice concerning this underlying issue, and service connection was actually granted, the claim as it arose in its initial context has been substantiated, i.e., proven, so the intended purpose of the notice served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has clarified that no additional VCAA notice is required for a "downstream" issue, so, here, including as concerning the effective date of the award, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Rather than issuing an additional VCAA notice letter in this situation concerning the "downstream" earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement is not resolved. And since the RO issued an SOC in December 2009, addressing the downstream claim for an earlier effective date, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an earlier effective date, no further notice is required. Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Huston v. Principi, 17 Vet. App. 195 (2003) (discussing the type of notice required when the claim, instead, arose originally as an earlier-effective-date claim, indicating this would require apprising the Veteran that evidence of an earlier-filed claim, which was not denied and that did not become a final and binding determination, is needed to show entitlement to an earlier effective date). Regardless, the Veteran was provided further notice regarding the "downstream" issues, including effective date, in December 2009. Additionally, in the September 2010 rating decision during the pendency of this appeal the Veteran was awarded an earlier effective date, albeit not to the earliest date he has requested, which also contained the applicable citations and reasoning. Consequently, the Board finds that all necessary development of this downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing him. Regarding the duty to assist him with this claim, resolution of this claim turns primarily on when he first filed his claim for service connection for this disability. So an examination and opinion are not needed to fairly decide this claim for an earlier effective date. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past). He has not cited additional evidence (outstanding records, etc.) relevant to this claim still needing to be obtained. 38 C.F.R. § 3.159(c). And as concerning his October 2012 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's or presiding Veterans Law Judge's (VLJ's) duties under 38 C.F.R. § 3.103(c)(2) are twofold. First, the presiding VLJ must explain fully the issues that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. This was done in this particular instance as there was open discussion back and forth during the hearing as to why the effective date usually coincides with the date of receipt of the claim - especially when, as here, the claim was for service connection and not filed within one year after discharge from service or even within one year of a change in VA law. II. Standard of Review In deciding this claim, the Board has reviewed all of the relevant evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Merits of the Claim As already alluded to, the Veteran contends that the effective date of his service-connected prostate cancer should coincide with the date of the original diagnosis of this condition, so in March 2003. He states that it was not until February 2008 that he first learned of the Agent Orange presumption available to establish his entitlement to service connection for this condition and that he then, rather immediately, proceeded to filing his claim. He submitted an Agent Orange VA newsletter contemporaneously dated in October 2007 containing information regarding the presumption and options available to qualifying Veterans. He maintains that, had he known about the presumption in 2003 when he initially received his diagnosis of prostate cancer, he most certainly would have filed his claim earlier rather than later. So he does not feel it is fair to penalize him for not knowing of this entitlement earlier than he learned of it. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2013). Generally, and except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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 (2013). Importantly, 38 C.F.R. § 3.400(b)(2) provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. Otherwise, any subsequent grant of benefits cannot be any earlier than the receipt of the eventually filed claim. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2013). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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) (2013). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Further, once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). In analyzing the last sentence of 38 C.F.R. § 3.157(b)(1), the Board observes that the regulation contains two alternative requirements. The first is that the VA medical reports must refer to examination or treatment of a disability for which service connection previously has been established. This comports with the first criterion in the first sentence of subsection (b), that a formal claim for compensation must have been allowed. The other alternative criterion of 38 C.F.R. § 3.157(b)(1) is that a claim specifying the benefit sought is received within one year from the date of the VA medical record. This clearly applies to disabilities other than those for which service connection has been established. However, this last sentence must be interpreted in light of the rest of the subsection. The first sentence of subsection (b) states an initial requirement, either that a formal claim for compensation must have been allowed or that a formal claim for compensation has been denied by reason that the disability is not compensable in degree. The last sentence of sub-subsection (b)(1) clarifies that the medical reports must relate to the disability for which service connection has been established or that a claim be submitted within the year. This last phrase clearly refers to disabilities for which service connection has not been established, but it is also subject to the restriction in the beginning of the subsection, that it be a disability for which service connection has been denied because it is not disabling to a compensable degree. The Court has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission."). Indeed, a claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). But while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Here, the Veteran was granted service connection for his prostate cancer in an October 2008 decision, effective March 12, 2008, what was then thought as the first date he had filed a claim for this condition. A slightly earlier effective date of February 13, 2008, however, subsequently was granted after he submitted records showing he had tried to initiate a claim as of that slightly earlier date. While the Board acknowledges his assertion that he would have filed his claim even earlier had he known about the Agent Orange presumption for prostate cancer, there was no prior VA obligation to inform him simply as a matter of course about all potentially available benefits. See Brannon, 12 Vet. App. 32, 35. He does not dispute that he did not actually first attempt to file a claim until February 13, 2008, as per the supporting documents he submitted along with his substantive appeal. Because entitlement arose much earlier in March 2003, the date of claim must be used to establish the effective date. See Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA). The United Stated Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. Rather, according to the Federal Circuit Court, "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." MacPhee at 1327 (bold type added for emphasis); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"); 38 C.F.R. § 3.155(a) ("Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs . . . may be considered an informal claim. Such informal claim must identify the benefit sought."). But in this particular case at hand, the Veteran had not established his entitlement to service connection for prostate cancer when initially seen and evaluated for this condition in March 2003. It equally deserves mentioning that there are no prior final and binding decisions denying his claim of entitlement to service connection for prostate cancer that in turn could be collaterally attacked, this long after the fact, on the basis they involved Clear and Unmistakable Error (CUE). So there is no earlier decision to vitiate its res judicata and provide grounds for assigning an earlier effective date pursuant to 38 C.F.R. § 3.105(a). Furthermore, he did not receive treatment at a VA Hospital between 2003 and 2008 for his prostate cancer (he instead elected to receive private treatment). Thus, there is no hospital record or report to treat as an informal claim pursuant to § 3.157(b)(1), even if this was permissible. There are a few other important things also worth noting. Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a) (2013). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). If a claim is reviewed on VA's initiative within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). However, if a claim is reviewed on VA's initiative more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of the administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). But in order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114(a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. However, after VA added certain presumptive Agent Orange diseases under 38 C.F.R. § 3.309(e), the Federal Circuit Court made the legislation retroactive. See Liesegang v. Secretary of VA, 312 F.3d 1368 (Fed. Cir. 2002). For many years, VA has been involved in litigation regarding compensation for Vietnam Veterans exposed to Agent Orange. In May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985. Nehmer I at 1409. The District Court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations. Nehmer II at 1183. In short, District Court orders in the Nehmer litigation have created an exception to the generally applicable rules in 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114 . The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, which became effective on September 24, 2003. That regulation defines a "Nehmer class member" to include a Veteran who has or died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i), (b)(2)(i). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) 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 May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, 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. 38 C.F.R. § 3.816(c)(1), (c)(2). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) 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; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(i), (ii). Here, as mentioned, the Veteran's claim for prostate cancer was not received by VA until February 13, 2008, whereas the effective date of the statute or regulations establishing a presumption of service connection for this disease was much earlier, on November 7, 1996. The effective date of the claim for service connection therefore must be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.816(c)(2). The Veteran's entitlement arose in March 2003. Thereafter, more than a year later, he filed a claim for service connection for prostate cancer on February 13, 2008. There is no documentation in the record establishing he had submitted another claim, formal or otherwise, for the same disability at any time prior. In conclusion, then, the preponderance of the evidence is against his claim for an effective date even earlier than February 13, 2008, for the grant of service connection for the prostate cancer that is presumptively due to his presumed exposure to Agent Orange during his service. This effective date coincides with the date of receipt of the claim for this specific condition. In deciding this is the appropriate effective date, the Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against this claim, this doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hence, the appeal of this claim is denied. ORDER The claim of entitlement to an effective date earlier than February 13, 2008, for the grant of service connection for prostate cancer is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs