Citation Nr: 18140837 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-06 655 DATE: ORDER Entitlement to an effective date prior to September 19, 2013 for the grant of service connection for prostate cancer is denied. FINDING OF FACT The Veteran’s initial claim of entitlement to service connection for prostate cancer was received on September 19, 2013. CONCLUSION OF LAW The criteria for an earlier effective date prior to September 19, 2013, for the grant of service connection for prostate cancer have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1967 to July 1973. Effective Date 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); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. §3.400 (r). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s prostate cancer claim was received by VA prior to that date, the former regulations apply only to the prostate cancer claim, as provided below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or uniformed services will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157. 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. § 5110 (g); 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 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, if the veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114 (a)(3). In cases involving presumptive service connection due to herbicide exposure, such as is the case here, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816 (b)(1)(i). The regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816 (c). 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 for a covered herbicide disease. The regulation applies to a claim for compensation where 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 entitlement arose. 38 C.F.R. § 3.816 (c)(1), (c)(2). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816 (c)(4). Entitlement to an effective date prior to September 19, 2013 for a grant of service connection for prostate cancer. The Veteran contends that he is entitled to an effective date earlier than September 19, 2013 for the grant of service connection for prostate cancer as his condition would have been diagnosed earlier if he had been able to see a doctor sooner. In this case, a June 2014 rating decision granted service connection for prostate cancer from September 19, 2013, the date the claim was received. Based on the procedural history of this claim, the Board finds no support for an effective date for service connection for prostate cancer prior to September 19, 2013. The date assigned by the RO was appropriate and in accordance with 38 C.F.R. § 3.400. Although the Veteran may have demonstrated prostate cancer prior to September 19, 2013, VA cannot assign an effective date of an award of service connection based on the earliest medical evidence showing a causal connection to service; rather, it must assign the date that it received the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Also, the Veteran separated from active duty service in July 1973 and his application for service connection for prostate cancer was not received until September 2013, which is greater than one year after separation from service. Lastly, in the instant case, the Veteran was granted presumptive service connection for prostate cancer based on exposure to herbicide agents during service in Vietnam. As such, he is a Nehmer class member. However, the Veteran was not denied compensation for residuals of prostate cancer between September 25, 1985, and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and November 7, 1996, the date on which the liberalizing law that added prostate cancer as a disease presumptively due to in-service exposure to herbicides became effective. See Liesegang v. Sec’y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). In this regard, 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 if the veteran met all the criteria of the liberalizing law or issue at the time of the effective date of the law or VA issue and continuously from the date to the date of claim. 38 C.F.R. § 3.114 (a)(3). However, in this case, the evidence does not reflect that the Veteran met the criteria of the liberalizing law from November 7, 1996, to the date of his September 19, 2013 claim. As such, benefits may not be authorized from one year earlier than the date of his 2013 claim. Thus, the provisions of 38 C.F.R. § 3.400 apply, and such pertinent legal authority governing effective dates is clear and specific. The Board is bound by such authority. As, on these facts, no effective (Continued on the next page)   date for the award of service connection for prostate cancer earlier than September 19, 2013, is assignable, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel