Citation Nr: 1808017 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-06 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date prior to March 9, 2010, for the grant of service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty service from October 1967 to September 1970, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Boston, Massachusetts Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT The Veteran did not file a formal or informal claim for entitlement to service connection for prostate cancer, prior to March 9, 2010. CONCLUSION OF LAW The criteria for assignment of an effective date prior to March 9, 2010, for the grant of service connection for prostate cancer have not been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Analysis The Veteran contends that he is entitled to an effective date prior to March 9, 2010, for the grant of service connection for prostate cancer. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA 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). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, 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. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 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 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 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 request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicide agents, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. See 38 C.F.R. § 3.816; 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, including prostate cancer. 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)-(3). However, if the requirements of 38 C.F.R. § 3..816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. 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). The Veteran filed an informal claim for service connection, which was date-stamped as received by the RO on March 9, 2010. The evidence associated with the claims file prior to this date does not address the Veteran's prostate cancer. In sum, there is no evidence that indicates any intent on the part of the Veteran to apply for compensation for prostate cancer prior to March 9, 2010. The Veteran does not argue that he filed a formal or informal claim for service connection for prostate cancer prior March 9, 2010. Rather, he argues that since he was diagnosed with prostate cancer since at least 2006, an earlier effective date is warranted. In this regard, medical evidence shows that he was diagnosed with prostate cancer approximately in March 2007. He has also indicated that he was unaware that prostate cancer was a presumptive service-connected condition due to exposure to herbicide agents until 2010 and that VA should do more to inform veterans that prostate cancer is a presumptive disability when exposed to herbicide agents. Nevertheless, a lack of knowledge of VA regulations cannot be the basis for awarding an earlier effective date. Moreover, as the Veteran's claim was filed many years after he was discharged from service in September 1970, as a general matter, the effective date would be the date of receipt of the claim, as that is later than the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, as noted above, a liberalizing law applies and the criteria for retroactive payment pursuant to 38 C.F.R. § 3.114 are applicable. Nevertheless, in the instant case, the evidence clearly shows that the Veteran was not diagnosed with prostate cancer until approximately March 2007. Thus, as he did not have prostate cancer at the time of the effective date of the liberalizing law (November 7, 1996), he did not meet all the criteria for the liberalized benefit and, in turn, he is not eligible for a retroactive payment under 38 C.F.R. § 3.114. Accordingly, the appropriate effective date to be assigned is the date of his initial claim, March 9, 2010, pursuant to 38 C.F.R. § 3.400. In conclusion, the Board is precluded by statute from assigning an effective date prior to March 9, 2010, for the granting of service connection for prostate cancer. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than March 9, 2010. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date prior to March 9, 2010, for the grant of service connection for prostate cancer is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs