Citation Nr: 1756818 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-09 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than November 2, 2010 for service connection for prostate cancer, based upon substitution of the appellant as the claimant. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1985. He died in July 2012. The Appellant claims as the Veteran's surviving spouse. This matter arose to the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran submitted a claim for service connection for prostate cancer which was received by VA on November 2, 2010; there are no unadjudicated claims prior to that date which could establish service connection. CONCLUSION OF LAW The criteria for an effective date earlier than November 2, 2010 for the grant of service connection for prostate cancer, for purposes of substitution, have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends her husband should receive an earlier effective date for service connection for prostate cancer. Regrettably, for the following reasons, the Board finds an earlier effective date not warranted. Generally, the effective date for an award of service connection and disability compensation 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, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. 38 U.S.C.A. § 5110 (g); 38 C.F.R. § 3.114 (a)(3). VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) there was a claim pending (including received by VA) between May 3, 1989 and the effective date of the change in regulation allowing for a presumption of the covered disease, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) this section. 38 C.F.R. 3.816 (c)(1), (c)(2). The effective date under the change in regulation for prostate cancer is November 7, 1996. There are two exceptions to this rule: (1) if the class member's claim was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service and (2) if there was no prior claim (either previously denied or currently pending), then the effective date of the award shall be determined in accordance with the general effective date regulations. 38 C.F.R. § 3.816 (c)(3), (4). Considering the law and evidence, the Board finds the Veteran not entitled to an earlier effective date. The Veteran, unfortunately, is not eligible for the liberalizing law because he did not have a prior claim, either denied or currently pending in the period between 1989 and November 7, 1996. As such, the Veteran does not fall into the Nehmer class, and the correct date of entitlement will be decided by 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 The Veteran first applied for service connection on November 2, 2010, and the RO granted his claim, effective the date of receipt of his claim, November 2, 2010. Although the Veteran's prostate cancer falls under the Agent Orange presumption, he was not diagnosed with prostate cancer in the period between 1989 and November 7, 1996, nor did he apply for service connection earlier. Thus, he is not eligible for an earlier effective date. When the Veteran does not fall into the Nehmer class, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Accordingly, the current effective date of November 2, 2010 is the earliest possible date under the law. Although very sympathetic to the Appellant, the Board has no discretion in its decision. ORDER Entitlement to an effective date earlier than November 2, 2010, based upon substitution of the appellant as the claimant, is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs