Citation Nr: 1625516 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 14-26 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date prior to February 23, 2011 for the grant of service connection for prostate cancer. 2. Entitlement to an effective date prior to February 23, 2011 for the grant of service connection for metastatic bone cancer. REPRESENTATION Appellant represented by: Teena Petro, Agent ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In the rating decision, the RO granted service connection for prostate cancer and metastatic bone cancer and assigned initial 100 percent ratings for each, both effective February 23, 2011, the date of the Veteran's reopened claim for service connection. The Veteran disagreed with the effective dates assigned. FINDINGS OF FACT 1. By a December 2007 rating decision, the St. Petersburg, Florida RO denied the Veteran's claim of service connection for a prostate condition; the Veteran did not perfect his appeal of that rating decision. 2. The Veteran's claim for service connection for prostate cancer was not received until February 23, 2011. 3. The September 2011 rating decision on appeal granted service connection for prostate cancer and for metastatic bone cancer as secondary to prostate cancer. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 23, 2011, for the grant of service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2015). 2. The criteria for an effective date prior to February 23, 2011, for the grant of service connection for metastatic bone cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). The appeal arises from a disagreement with the initially assigned effective dates after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records have been obtained. Post-service VA and relevant private treatment records have also been obtained. No additional development is necessary as the claim turns on when a claim was filed and when the Veteran had prostate cancer and metastatic bone cancer. All records potentially relevant to these matters are of record. Thus, VA's duty to assist has been met. Analysis The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of service connection is based upon a variety of factors, including date of claim, date entitlement is shown, and finality of prior decisions. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Veteran initially filed a claim of service connection for a prostate condition in June 2006. A December 2007 rating decision by the St. Petersburg, Florida RO denied the claim. That RO issued a statement of the case (SOC) in September 2009. The accompanying letter advised the Veteran that in order to complete his appeal, he needed to return a VA Form 9 within 60 days of the letter or within the remainder, if any of the one-year period from the date of the letter notifying him of the action that he had appealed. Following the issuance of the September 2009 SOC, the claim file contains no communication from the Veteran (other than a Declaration of Status of Dependents) until February 23, 2011, when his claim for entitlement to service connection for prostate cancer was received at the Indianapolis RO. The Veteran underwent a VA examination in September 2011. In the September 2011 rating decision on appeal, the RO granted service connection for prostate cancer and for metastatic bone cancer as secondary to prostate cancer; both awards were effective from February 23, 2011, the date of the reopened claim. The United States Court of Appeals for Veterans Claims (Court) has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) The Veteran was notified of the December 2007 prior denial, and he did not perfect his appeal. The Board notes that Section 3.156(b) provides that new and material evidence received by VA prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The United States Court of Appeals for Veterans Claims has consistently held that section 3.156(b) requires VA to determine whether evidence submitted within one year after the issuance of a rating decision constitutes new and material evidence relating to an earlier claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Until such a determination is made, the claim does not become final. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence). Additionally, the RO is required to issue a supplemental statement of the case (SSOC) when additional pertinent evidence is received in connection with an appeal after a statement of the case (SOC) has been issued and before the appeal is certified and the record is transferred to the Board. 38 C.F.R. § 19.31 (2015). The holdings in Beraud and Bond are distinguishable from the present case because the September 2009 statement of the case explicitly considered VA treatment records received during the one year period following the initial denial in December 2007. The Board finds, therefore, that the December 2007 rating decision became final. The Veteran contends that he sought VA treatment during the summer of 2010 for rib pain; that his prostate cancer and metastatic bone cancer should have been diagnosed earlier than December 2010; and that earlier effective dates are warranted for the awards of service connection for those disabilities. However, even had the Veteran's cancers been diagnosed earlier in 2010, there would be no basis for an earlier effective date. As noted above, the effective date of an award based on a claim reopened after final adjudication of compensation shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In sum, as the December 2007 rating decision is final, and the claim to reopen the claim of service connection for a prostate disability was received on February 23, 2011, effective dates earlier than February 23, 2011 for the grant of service connection for prostate cancer and the secondary award of metastatic bone cancer are not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an effective date prior to February 23, 2011 for the grant of service connection for prostate cancer is denied. Entitlement to an effective date prior to February 23, 2011 for the grant of service connection for metastatic bone cancer is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs