Citation Nr: 18152056 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-48 073 DATE: November 20, 2018 ORDER Entitlement to service connection for prostate cancer and all associated residuals is granted. Entitlement to an effective date prior to December 1, 2014, for the grant of entitlement to service connection for diabetes mellitus, type II, is denied. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam from August 1966 to September 1967 and was diagnosed with prostate cancer in June 2015. 2. On December 1, 2014, the Veteran submitted a claim for entitlement to service connection for diabetes mellitus, type II. 3. Prior to the receipt of the December 2014 claim there were no pending requests for service connection that remained unadjudicated. CONCLUSIONS OF LAW 1. Prostate cancer and all associated residuals is presumed to have been incurred in service. 38 U.S.C. § 1110, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). 2. The criteria for an effective date prior to December 1, 2014, for the grant of entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. 5110 (2012); 38 C.F.R. 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from January 1966 to January 1968. The Veteran had service during that time in the Republic of Vietnam as a rifleman and his decorations and medals include the National Defense Service Medal, Vietnamese Service Medal with Service Star, and the Vietnamese Campaign Medal. 1. Entitlement to service connection for a prostate disability, to include a high prostate reading due to Agent Orange exposure The Veteran contends that he has a prostate disability due to his active service. A “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2018). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include, among others, prostate cancer. Id. The medical evidence reflects that a June 2015 biopsy demonstrated prostate cancer. A July 2015 treatment record noted a diagnosis of prostate cancer based on the foregoing test results and a rising PSA level from 2010. Therefore, as the Veteran has a diagnosis of prostate cancer within the appellate time period and in-service exposure to herbicides during the applicable presumptive period is conceded, the Board concludes he is entitled to a grant of service connection for his prostate cancer and all associated residuals on a presumptive basis. 38 C.F.R. § 3.309(e). 2. Entitlement to an effective date prior to December 1, 2014, for the grant of entitlement to service connection for diabetes mellitus, type II In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. 5110(b) (2012); 38 C.F.R. 3.400(b) (2018). In this case, the Veteran separated from active service in January 1968. He did not submit a claim of entitlement to service connection for diabetes mellitus or any residuals within one year from his discharge. Therefore, assignment of an effective date back to the day following discharge is not possible. Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. Effective in March 2015, 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. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2018). However, prior to that date, and including the time period involved in this appeal, the terms “claim” and “application” meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2016). On December 1, 2014, the Board received multiple claims for entitlement to service connection, to include one for “diabetes.” In a June 2015 rating decision, the RO granted entitlement to service connection for diabetes mellitus, type II, and assigned a 10 percent rating effective from December 1, 2014, the date of receipt of claim. In his July 2015 notice of disagreement, the Veteran disagreed with the effective date assigned based on laboratory reports from 2003 through 2014 demonstrating elevated glucose levels. The Veteran’s September 2016 substantive appeal reiterated that medical records showed that diabetes was present from 2003 and that he had informed a VA physician in Birmingham, Alabama about the diabetes prior filing his claim. He requested compensation for the diabetes mellitus for the prior years when he had a diagnosis of diabetes mellitus. As noted above, the effective date for a grant of service connection on an initial claim received more than one year after separation from service is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, December 1, 2014, is the earliest effective date possible under the relevant laws and regulations for the Veteran’s diabetes mellitus and the claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. (Continued on the next page)   In reaching that opinion, the Board has considered the Veteran’s private lab reports documenting elevated glucose levels from at least 2003. Again, the effective date of a grant of service connection is the date that the claim is received by VA. There is no evidence or contention that the Veteran submitted the private medical records documenting elevated blood glucose levels and/or diabetes mellitus prior to December 1, 2014, or other documents that would constitute a claim for entitlement to service connection for diabetes mellitus. Similarly, the Veteran’s assertion that he notified a VA physician in Birmingham, Alabama that he had a diagnosis of diabetes mellitus would not constitute a claim or application that could be construed as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. As such, December 1, 2014, is the earliest effective date available for the Veteran’s diabetes mellitus, type II. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel