Citation Nr: 1803975 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-12 712 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to July 24, 2012, for the award of service connection for prostate cancer. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in a September 2012 correspondence, the Veteran contended VA erred in not diagnosing his prostate cancer 18 months earlier and that such disability worsened as a result. The Board interprets this allegation as a claim for entitlement to compensation under the provisions of 38 U.S.C. § 1151. However, this has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this claim and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b). The Board also notes that, as the Veteran is already service connected for prostate cancer and rated at 100 percent disabling, a grant under 38 U.S.C. § 1151 may not result in any additional benefits. Additionally, the Veteran requested a Board hearing in his April 2014 VA Form 9 substantive appeal. Thereafter, in December 2014 and other correspondence, the Veteran notified the Board that he wished to withdraw this request. Therefore, the Board finds that the Veteran's hearing request has been withdrawn. 38 C.F.R. § 20.704. FINDINGS OF FACT 1. The Veteran's claim of service connection for prostate cancer was received on July 24, 2012. 2. The Veteran was discharged from active duty service in November 1968. CONCLUSION OF LAW The criteria for an effective date earlier than July 24, 2012, for an award of service connection for prostate cancer, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection 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, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). A claim is 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). The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Although VA now requires claims to be filed on the proper standardized form, this applies to claims filed on or after March 24, 2015. See 38 C.F.R. § 3.155 (2017). Analysis The Veteran filed his claim of service connection for prostate cancer on July 24, 2012. Prior to that time, the Veteran filed other service connection claims even as early as December 1968 (hearing loss), but none of them were for prostate cancer. In a September 2012 rating decision, service connection for prostate cancer was granted with an effective date of July 24, 2012. In September 2012, the Veteran submitted private treatment records from prior to July 2012 relevant to his prostate cancer diagnosis. He contends that the award should be made effective November 5, 2010, which is when he believes the diagnosis of prostate cancer should have been made. While the Board is aware of the Veteran's assertion that his prostate cancer should have been diagnosed by VA prior to July 2012, the effective date for service connection in this case is the later of the date of receipt of claim or the date entitlement to service connection arose, whichever is later. In this case, no formal or informal communication requesting a determination of entitlement, or evidencing a belief in entitlement, to service connection for prostate cancer was submitted prior to July 24, 2012. Additionally, even if prostate cancer were shown in medical records at an earlier time, the mere presence of medical evidence does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 34-35(1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503(2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."). Additionally, because there is no indication that the Veteran had prostate cancer when the disease was added to the list of diseases associated with herbicide agents, including Agent Orange (November 7, 1996), the liberalizing law provisions of 38 C.F.R. § 3.114 are not for application. See McCay v. Brown, 9 Vet. App. 183, 187-88 (1996) (implying that, when a liberalizing law is prospective, rather than retroactive, the requirements outlined in § 3.114(a) are necessary preconditions for a retroactive award under § 3.114(a)(3)). Furthermore, the claim was made more than one year after the Veteran's discharge from service, so the exception allowing for earlier effective dates for claims filed within one year of discharge is not applicable. Therefore, an effective date of the award of service connection for prostate cancer is not warranted prior to July 24, 2012. As the preponderance of the evidence is against the claim for an earlier effective date for the award of service connection for prostate cancer, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an earlier effective date is not warranted. ORDER An effective date prior to July 24, 2012, for the award of service connection for prostate cancer, is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs