Citation Nr: 18160123 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-66 178 DATE: December 21, 2018 ORDER Entitlement to an effective date prior to March 28, 2017 for the award of service connection for prostate cancer, in remission, is denied. REMANDED Evaluation of prostate cancer, in remission, currently evaluated as 10 percent disabling, is remanded. FINDING OF FACT A claim for service connection for prostate cancer was not received prior to March 28, 2017. CONCLUSION OF LAW The claim for an effective date earlier than March 28, 2017, for the award of service connection for prostate cancer is without legal merit. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1959 to December 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision. The Veteran testified before the undersigned in an August 2018 video-conference Board hearing, the transcript is included in the record. Entitlement to an effective date prior to March 28, 2017 for the award of service connection for prostate cancer, in remission, is denied. The Veteran asserts that his award of service connection for prostate cancer should be earlier than March 28, 2017. Specifically, he seeks an effective date in 2013 when he was first diagnosed as having prostate cancer. In general, the effective date of a rating 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 the later. 38 U.S.C. § 5110 (2017); 38 C.F.R. § 3.400 (2017). The effective date for 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, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i) (2017). VA amended its adjudication regulations on March 24, 2015, to require all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. Prior to March 25, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014); but see 38 C.F.R. § 3.1(p) (2017) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary). It has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. It follows logically that where there can be found no intent to apply for VA benefits, a claim of entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). See also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). In April 2015, the Veteran, through his representative, submitted a claim for service connection for hearing loss and tinnitus. While the Veteran has more recently stated that he thought that his representative also submitted a claim for service connection for prostate cancer at that time, there was no mention of prostate cancer in the correspondence submitted by his representative in April 2015. See Statement from the Veteran, dated October 18, 2018. In a Financial Status Report dated April 25, 2015 (VA Form 5655), the Veteran wrote that he was trying to get a waiver for increasing medical costs and reversal of cancer treatment charges. The RO sent the Veteran a letter dated August 28, 2015, acknowledging that he had submitted the VA Form 5655 stating that he was seeking a waiver for increased medical costs due to cancer treatment. The RO stated, “We did not interpret this as a claim for cancer. If you have cancer and would like to claim it as a service connected disability, please inform us.” The Veteran did not reply. Thereafter, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits, claiming service connection for prostate cancer, on March 28, 2017. See VA Form 21-526EZ, dated March 28, 2017. The Board observes there is no evidence of record that shows a claim for service connection for prostate cancer prior to March 28, 2017. As noted above, an effective date is assigned based on either when a claim was filed or when entitlement arose, whichever is later. Here, the Veteran’s claim was filed on March 28, 2017. He has acknowledged that his representative did not submit a claim for service connection for prostate cancer at the time of the claims for service connection for hearing loss and tinnitus in April 2015, although the Veteran previously thought he had done so. See Statement from the Veteran, dated October 18, 2018. Further, VA is not responsible for incorrect information supplied by someone outside VA. In October 2018 correspondence, the Veteran stated that he sought all of his medical treatment through VA and that his treatment records showed elevated PSA levels for two years prior to his diagnosis of prostate cancer; however, no one within the VA healthcare system suggested that he contact VA to file a claim for service connection. Under 38 C.F.R. § 3.157 (in effect prior to March 24, 2015), a report of examination or hospitalization by VA may be accepted as an informal claim for benefits only once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Thus, even assuming that the VA treatment records showed evidence of prostate cancer prior to March 2017, such treatment was not preceded by an adjudication of the type cited in 38 C.F.R. § 3.157(b). As such, any records of earlier VA treatment for prostate cancer would not serve as an informal claim for service connection. See Crawford v. Brown, 5 Vet. App. 33 (1993). The mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. See Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Further, with respect to the Veteran’s assertion that none of his VA healthcare providers suggested that he submit a claim for service connection for prostate cancer, there is no such duty. At his August 2018 Board hearing, the Veteran testified that he is seeking an earlier effective date based on the fact that he would have applied earlier had he known his service in Thailand could have qualified him for presumptive service connection. See Hearing transcript at 8. The Board is sympathetic to the Veteran’s claim. However, the Board is bound by the law and without legal authority to grant the benefits sought. Absent evidence showing that a claim for service connection for prostate cancer was received before March 28, 2017, entitlement for an earlier effective date cannot be assigned. Since the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994). Further, because the outcome of this case is determined solely as a matter of applicable law rather than by facts that are in dispute, and because no additional development could result in a favorable decision, the notice and assistance provisions of the VCAA do not apply. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also 38 C.F.R. § 3.159(d). Moreover, because this is a "downstream issue" arising from a grant of service connection, any notice errors were moot. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). REASONS FOR REMAND Evaluation of prostate cancer, in remission, currently evaluated as 10 percent disabling, is remanded. At the hearing in August 2018, the Veteran testified that his symptoms have increased since his last VA examination. Based on the contention that his symptoms worsened, a new VA examination is warranted to determine the current severity of his residuals associated with his prostate cancer in remission. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Schedule the Veteran for a genitourinary examination to determine the current extent and severity of his residuals associated with his service-connected prostate cancer in remission. The electronic claims file must be reviewed in conjunction with the examination. The examiner must consider and address the Veteran’s lay statements of which he is competent to report (e.g., urinary frequency, use of disposable underwear or undergarments) in documenting the severity of his symptoms. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck