Citation Nr: 21000623 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-23 675 DATE: January 5, 2021 ORDER Entitlement to an effective date prior to March 10, 2010 for service-connected residuals of prostate cancer is denied. REMANDED Entitlement to increased ratings for service-connected rectal proctitis is remanded. FINDING OF FACT 1. The Veteran’s claim of entitlement to service connection for prostate cancer was received on March 10, 2020. 2. There is no evidence dated prior to March 10, 2020 that may be interpreted as a formal or informal claim of entitlement to service connection for prostate cancer. CONCLUSION OF LAW An effective date earlier than March 10, 2010 for the grant of service connection for residuals of prostate cancer is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1968 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of separate rating decisions dated August 2010 and August 2012 issued by Department of Veterans Affairs (VA) Regional Offices (RO). By way of background, the Veteran has been service connected for prostate cancer residuals since March 10, 2010. The Veteran has limited his appeal herein to an earlier effective date prior to March 10, 2010. See VA Form 9 (rec’d Aug. 16, 2013 ). Meanwhile, the Veteran is also service connected for rectal proctitis, which has been rated as noncompensable from September 20, 2011 to prior to April 16, 2014, see Rating Decision (Aug. 24, 2012), and at 30 percent disabling thereafter, see Rating Decision (May 6, 2014). The Veteran has continuously prosecuted the propriety of this rating since the initial rating. See VA Form 9 (rec’d May 29, 2014 ). The Veteran waived his prior requests for hearings on the matters on appeal, see VA Form 21-0820 (rec’d Sept. 19, 2016), cf. VA Forms 9, supra. The Board asserts jurisdiction accordingly. For the reasons to be more fully articulated below in respective relevant part, in short, there is simply no evidence of record to support an allowance of an effective date for the benefits on appeal any earlier than March 10, 2010. Meanwhile, the Board concludes that the claims for higher ratings should be remanded. 1. Entitlement to an earlier effective date prior to March 10, 2010 for service-connected residuals of prostate cancer is denied. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400(b)(2). The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arouse is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, 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. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the Veteran’s submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id. The word “claim” includes 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits 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). In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant’s intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that “[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to... be paid under the laws administered by the Secretary.”) The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim “when such reports relate to examination or treatment of a disability for which service-connection has previously been established”). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). On March 10, 2010, the AOJ received the Veteran’s original claim for service connection for prostate cancer. See VA Form 21-526 (rec’d Mar. 10, 2010 ). The Veteran has not identified nor has the Board’s review of the record disclosed a formal or informal claim for benefits prior to March 10, 2010. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 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). The Board is sympathetic to the Veteran’s contention that the effective date should be February 23, 2010 (approximately two weeks prior to March 10), based upon his belief that his representative initiated the claim on February 23. The Board does not impugn this contention; however, by statute, the Board is bound by the date that the AOJ received the claim—not when the claim may have otherwise been initiated. The evidence provides no basis for an award of service connection prior to March 10, 2010. While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as an informal claim for disability where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, any record of VA treatment for the Veteran’s prostate cancer during this period also cannot constitute a request to open a claim for service connection any earlier than when the AOJ received the claim. The Veteran was entitled to file Notices of Disagreement and perfect appeals on VA Forms 9 as to the propriety of any rating; however, the issue of increased ratings for prostate cancer is not before for the Board for its consideration. The Veteran’s argument for an earlier effective date appears to be limited to, in sum and substance, that the representative initiated his claim shortly before the claim was received by the AOJ on March 10, 2010. The law and regulations surrounding the assignment of an effective date for an original claim for benefits is clear and specific. See 38 C.F.R. § 3.400. There has been no allegation, and the record does not support, that the AOJ received the Veteran’s claim for prostate cancer any earlier than March 10, 2010. It is not in serious dispute that the Veteran was diagnosed with prostate cancer before March 10, 2010; therefore, between the choices of the date entitlement arose and the date of receipt of claim, March 10, 2010 is the later. Based on the analysis above and after reviewing the totality of the evidence, the Board finds that the effective date for the grant of service connection for residuals of prostate cancer has been appropriately assigned as the date the AOJ received the claim, i.e., March 10, 2010. See 38 C.F.R. § 3.400. Within this restriction, the Board is precluded by law from assigning an effective date prior to March 10, 2010 for the grant of service connection for residuals of prostate cancer. Accordingly, the preponderance of the evidence is against the claims for an effective date prior to March 10, 2010 for the award of service connection for such disability, and, as such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to increased ratings for service-connected rectal proctitis is remanded. By way of background, the Veteran’s rectal proctitis was last examined on April 16, 2014, see C&P Exam ( Apr. 16, 2014 ). On this basis, the Veteran was afforded a staged rating at 30 percent effective that date, while his initial noncompensable rating was continued prior to that date. The Veteran was not subsequently examined until February 16, 2020; however, this examination pertains to prostate cancer but not rectal proctitis. Since the last time the Veteran’s rectal proctitis was examined, see C&P Exam (Apr. 16, 2014), supra, the Veteran’s prostate cancer residuals—to which the Veteran’s rectal proctitis is secondary—was afforded a higher staged rating. As a result of the above, the Board ultimately concludes that an updated VA examination is required to fully assess and adjudicate the Veteran’s claim. See Weggerman v. Brown, 5 Vet. App. 281 (1993); Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from them, all outstanding records, to include any VA treatment records, should be obtained. Whether the Veteran may be required to submit to an in-person examination for same is left to the discretion of the examiner. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative, and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After the receipt of any outstanding records, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected rectal proctitis. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests should be performed. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.