Citation Nr: 21065472 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-57 387 DATE: October 26, 2021 ORDER An effective date prior to February 18, 2016, for the award of service connection for lung cancer, is denied. REFERRED During the May 2021 hearing before the undersigned Veterans' Law Judge, the appellant's representative raised the issue of clear and unmistakable error (CUE) in the September 1974 rating decision due to failure to properly rate the Veteran's service-connected gunshot wound injury, to include possibly related residuals of lung symptoms/disorders. Additionally, the appellant's representative discussed CUE in the disability rating ratings assigned for the gunshot wound disability in subsequent years, as well as the question of whether an earlier effective date is warranted for the award of special monthly compensation (SMC) benefits. The appellant's representative also raised the issue of compensation under 38 U.S.C. § 1151 for VA's failure to properly diagnosis the Veteran's lung cancer in a timely manner. These claims have not been addressed by the Regional Office (RO) in the first instance and are not currently on appeal. Thus, the Board does not have jurisdiction over these claims and the issues are referred to the RO for appropriate action. FINDING OF FACT The Veteran's original claim for service connection for lung cancer was received by the Veteran's Administration (VA) on February 18, 2016. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than February 18, 2016, for the award of service connection for lung cancer have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § § 3.155, 3.400(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1967 to January 1970. Unfortunately, the Veteran passed away in August 2016. The appellant in this case is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of VA Regional Office (RO). In this case, it is the appellant's contention that the Veteran's date of entitlement to service connection for lung cancer should be at least as of 2013 because in November 2015, she and the Veteran were informed that due to the severity of the lung cancer, the disability could have been present at least a year prior at the time of diagnosis. The appellant, present with her representative and her daughter, testified before the undersigned Veterans' Law Judge at a May 2021 Board hearing. A transcript of the hearing is of record and associated with the claims file. An effective date prior to February 18, 2016, for the award of service connection for lung cancer, is denied. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An appellant may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155. In a statement received in March 2017, the appellant stated that the Veteran was granted service connection for lung cancer effective February 18, 2016, in a March 2016 rating decision, but to date, no compensation was awarded. She requested a lump sum payment, at the least. In her March 2017 Notice of Disagreement (NOD) to the October 2016 rating decision, however, the appellant stated that she requests a date for service connection of November 2014. She said that in November 2015, VA diagnosed the Veteran with lung cancer, and they did not know they could file a claim until February 18, 2016. She stated that because the doctor said that it was at a severity that he could have had a year prior to the diagnosis, she requested the November 2014 date of service connection. At the May 2021 Board hearing, the appellant testified that she believes under circumstances going back to at least year 2013 would be possibly a better date to go back to because in November 2015, her husband was diagnosed with stage four lung cancer. She said that the Veteran had not missed any appointments going to the VA and he had a chest x-ray, which would have been in 2013, and was told it was good and clear. When they went for an appointment in November 2015, they were told that the Veteran had cancer. She testified that they were in shock and could not understand how it could be stage four cancer and he had not missed any appointments. She testified that they began to feel like maybe somebody dropped the ball and did not give a chest x-ray the year before, in 2014. The appellant stated that they went for the Veteran's appointment because he developed a cough that was not going away in 2015. The Veteran's daughter clarified that the year was 2013 as she stated that it went from November 2013 having a chest x-ray, which did not result in any type of health issue to then in November 2015, her father being diagnosed with stage four lung cancer. Here, the evidence of record reflects that the VA received the Veteran's VA 21-526EZ, Fully Developed Claim (Compensation) for service connection for lung cancer on February 18, 2016. The record reflects that this was his first original and only claim for the disability. He was awarded service connection for lung cancer at an evaluation rating of 100 percent effective February 18, 2016, in a March 2016 rating decision. The record does not contain any earlier communications from the Veteran indicating an intent to file claim for service-connected compensation benefits for lung cancer or lung disorder or coughing disorder. Moreover, the Veteran was discharged from service in January 1970, as such the application was not received within one year from such date of discharge. 38 U.S.C. § 5110(b). Further, it is the appellant's position that an earlier effective date should be established based on the contention of being told by a VA doctor that the Veteran could have had the lung cancer diagnosis prior to the date of his formal diagnosis, November 2015, as detailed in the May 2021 Board hearing. The Board acknowledges that the Veteran's lung cancer diagnosis (and likely onset) predates when he actually filed his claim for service connection benefits on February 18, 2016. As noted above, however, the effective date of an award based on claim for service connection shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a). By law, the effective date for service connection is the late of the two dates, which is the date that the Veteran filed his February 2016 claim. To the extent that the appellant asserts that the Veteran was unaware of any possible lung conditions prior to his November 2015 diagnosis, such contentions further demonstrate that no claim for service connection for a lung disorder was filed prior to February 2016. Accordingly, under the undisputed facts of this case, therefore, there is no legal basis for an earlier effective date. Service connection has been awarded from February 18, 2016, the date of receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. No argument provided by law has been submitted in support of the award of earlier effective dates for the Veteran's service-connected lung cancer, such as an intent to file claim or statement or receipt of claim for entitlement to service connection for lung cancer prior to February 18, 2016. Instead, the evidence establishes that at no time prior to February 18, 2016, was a claim made or received for service connection for lung cancer. Accordingly, as the record reflects the Veteran was in receipt of the earliest possible effective date as provided by law, there is no basis to award an earlier effective date. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). The Board finds that the preponderance of the evidence of record weighs against a finding that an effective date earlier than February 18, 2016 is warranted; thus, the benefit of the doubt doctrine does not apply and the appellant's claims for such earlier effective date is denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Although the Board is sympathetic to the appellant's contentions, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See Harvey v. Brown, 6 Vet. App. 416, 425(1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33(1992). To the extent that the appellant or her representative claims entitlement to an earlier effective date based on CUE in a prior rating decision, an earlier effective date for SMC benefits, or a claim for § 1151 benefits related to the medical care the Veteran received at VA, as noted above, these claims have not been addressed or raised to the RO in the first instance, and therefore, cannot be addressed by the Board. The appellant is welcomed to file such claims, on the proper form, if she so desires. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.