Citation Nr: 1801149 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-00 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than October 11, 2012, for the grant of service connection for prostate cancer. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1960 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system. LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran filed an original claim for service connection for prostate cancer that was received at the RO on October 11, 2012. 2. The Veteran did not file a formal or informal claim for entitlement to service connection for prostate cancer prior to October 11, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than October 11, 2012, for the grant of service connection for prostate cancer have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. VA has promulgated special rules for effective dates for the award of presumptive service connection based on exposure to herbicides. See 38 C.F.R. § 3.816 (2017); see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. See 38 C.F.R. § 3.816. The Veteran meets the criteria to be considered a "Vietnam veteran" as defined in the regulations. See 38 C.F.R. § 3.307(a)(6). The Veteran's DD-214 indicates that he served in Vietnam during the Vietnam War. The Veteran also has a covered herbicided disease as prostate cancer was added to the list of diseases subject to service connection on a presumptive basis, effective November 7, 1996. See 38 C.F.R. § 3.816(b)(2). Thus, the Veteran is a Nehmer class member and the special rules apply. The Veteran filed a claim to establish entitlement to service connection for prostate adenocarcinoma that was received at the RO on October 11, 2012. The claims file does not contain any communication from the Veteran that may be reasonably construed as a formal or informal claim of entitlement to service connection for prostate cancer received by VA prior to October 11, 2012. See 38 C.F.R. §§ 3.151, 3.155 (2017). Service connection for residuals of prostate cancer was granted in December 2012 rating decision; a 100 percent evaluation was assigned effective October 11, 2012, the date on which the Veteran's claim was received. The Veteran seeks entitlement to an effective date earlier than October 11, 2012, for the grant of service connection for residuals of prostate cancer. In his December 2012 notice of disagreement, he asserted that the 100 percent rating should apply from the date he was diagnosed with prostate cancer. A November 2012 VA examination for prostate cancer shows that he received a diagnosis of this condition on August 13, 2012. as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1) and (c)(2). When none of the requirements of 38 C.F.R. § 3.816 are met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). As noted above, the Veteran filed an original claim seeking entitlement to service connection for prostate cancer that was received on October 11, 2012, and there is no indication from review of the record that he submitted a formal or informal claim for service connection for prostate cancer prior to that date. There has been no specific contention to the contrary. More specifically, the Veteran contends that the effective date should be on the day of his diagnosis, or on August 13, 2012. Given that there is no indication the Veteran filed for and was denied compensation for prostate cancer or its residuals between September 25, 1985, and May 3, 1989, or that he had a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law that added prostate cancer to the list of disease presumptively associated with herbicide exposure, which was November 7, 1996, prior to when he was diagnosed with prostate cancer, the effective date of the award of service connection for ischemic heart disease shall be determined in accordance with 38 C.F.R. § 3.114 and 3.400. As discussed above, 38 C.F.R. § 3.400 provides that the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. Review of the medical evidence in this case indicates that the Veteran had been diagnosed with prostate cancer prior to October 11, 2012, the date on which his claim for service connection was received. As the date of receipt of claim is later than the date entitlement arose, the Veteran is not entitled to an effective date earlier than October 11, 2012, under the provisions of 38 C.F.R. § 3.400. Thus, the only remaining avenue for an earlier effective date in this case is through 38 C.F.R. § 3.114. Under this regulation, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for retroactive payment, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA 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). If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In this case, the Veteran's original claim for service connection for prostate cancer was received approximately 21 years after the effective date of the applicable liberalizing law that added prostate cancer to the list of disease presumptively associated with herbicide exposure. In addition, the record shows that he was diagnosed with prostate cancer in August 2012. Given the foregoing, the provisions of 38 C.F.R. § 3.114 do not apply to the instant case as the Veteran did not meet all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law, November 7, 1996. Namely, he had not yet been diagnosed with prostate cancer at that time. Accordingly, the Board finds that the earliest possible effective date for the award of service connection for residuals of prostate cancer is October 11, 2012, and that the claim for an effective date earlier than October 11, 2012, must be denied. ORDER Entitlement to an effective date earlier than October 11, 2012, for the grant of service connection for prostate cancer is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs