Citation Nr: 21069094 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 19-33 357 DATE: November 17, 2021 ORDER Entitlement to an effective date earlier than June 13, 2016 for the increased rating of 40 percent for residuals of prostate cancer is denied. REMANDED Entitlement to a rating in excess of 40 percent for residuals of prostate cancer is remanded. FINDINGS OF FACT 1. The Veteran submitted an intent to file a claim on June 17, 2015 and on June 13, 2016. 2. The Veteran submitted a formal claim for increased rating for residuals of prostate cancer on July 9, 2016. 3. A worsening of the Veteran's disability is not factually ascertainable in the year preceding his July 2016 claim. CONCLUSION OF LAW The criteria for an effective date earlier than June 13, 2016 for a 40 percent rating prostate cancer for are not met. 38 U.S.C. § 5110 5103, 5103A, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1966 to December 1969. The Veteran appeals a January 2017 rating decision by the Agency of Original Jurisdiction (AOJ). 1. Entitlement to an effective date earlier than June 13, 2016 for the increased rating of 40 percent for residuals of prostate cancer The Veteran appeals a January 2017 rating decision AOJ assigning a 40 percent evaluation for prostate cancer residuals effective June 13, 2016. See March 2017 Notice of Disagreement. Unless specifically provided otherwise, the effective date of an award of compensation shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability, and the mere presence of medical evidence of a condition does not establish intent on the part of the Veteran to seek service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to March 24, 2015, a claim or an application was "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). Intent to apply for benefits is an essential element of any claim, whether formal or informal. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). The mere existence of medical records generally cannot be construed as an informal claim. Id. at 504. For an increased rating claim, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date. Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o). Analysis The Veteran submitted a December 2014 statement and a June 2015 statement from Dr. J.M in submissions received on June 17, 2015. See June 2015 Medical Opinion. VA Sent the Veteran correspondence on July 8, 2015 that he would need to file a formal claim for benefits on a standardized form. See July 2015 Correspondence. This correspondence as addressed to the Veteran's address listed in VA systems, but it was returned as undeliverable. On June 13, 2016, the Veteran contacted VA and requested a copy of the July 8, 2015 letter and provided an updated address. See June 2016 Report of Contact. The AOJ considered this as an intent to file and notified the Veteran with correspondence that he should file a formal claim. See June 2016 Correspondence. The Veteran filed a VA Form 21-526EZ and claimed an increased evaluation for prostate cancer. As he was assigned a 40 percent rating for prostate cancer residuals as of the date of his June 13, 2016 communication with VA indicating an intent to file because he filed a formal claim for benefits within one year of this date. See January 2017 Rating Decision. VA set the effective date for the Veteran's increase disability in disability rating for prostate cancer residuals as the day his intent to file within one year of the date a formal claim was received: June 13, 2016. The Veteran's June 17, 2015 submissions, while indicating an intent to file, are more than one year prior to the receipt of his formal claim on July 8, 2016. The Veteran could still receive an earlier effective date if it is factually ascertainable that an increase in disability had occurred within the one year prior to his July 2016 claim. Here, the medical record and the Veteran's assertions do not indicate the Veteran's prostate cancer residuals underwent an increase in the year prior to his July 9, 2016 claim. The Board notes that a medical record search in November 2016 showed no VA progress notes. See November 2016 Medical Record. The Veteran reported at a December 2016 examination that his prostate cancer disability had worsened many years prior to his claim in July 2016, indicating that he had severe post-operative residuals following surgery in 2001 and his disability had increased in severity over the years. See December 2016 VA Examination. This history is also consistent with the Veteran's reports at the August 2021 examination that he had experienced voiding dysfunction and erectile dysfunction since surgery for a radical prostatectomy. See August 2021 Examination. Importantly, the June 2015 statement from Dr. J.M does not indicate the Veteran's disability underwent an increase in the year prior to his July 2016 as this statement discusses the Veteran's health from the period of January 2014 to June 2015. See June 2015 Medical Opinion. The Board finds the preponderance of the evidence shows that the Veteran's June 2015 intent to file submissions were not ultimately followed by timely formal application. Additionally, the evidence does not demonstrate that the Veteran's disability underwent a factually ascertainable increase in severity in the one year prior to his July 2016 claim. Accordingly, the Veteran is not entitled to an effective date prior to June 13, 2016 for the assignment of a 40 percent rating for prostate cancer residuals. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for residuals of prostate cancer is remanded. Unfortunately, the Board finds that further AOJ action on the instant claim is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the Board's April 2021 remand, relevant medical records, including records at VA after November 2016, may be outstanding. The Board directed VA to obtain any outstanding treatment records, however, there is no indication this was completed. The AOJ attempted to obtain authorization for private medical records but there is no indication of an attempt to verify the existence or obtain VA medical records. See May 2021 Correspondence; see also September 2021 Supplemental Statement of the Case. Given the remand for this evidence, the Board finds VA should request the Veteran authorize release of all of his pertinent medical records, and especially urology records. Importantly, the Veteran provided the August 2021 examiner medical records from his urologist that were dated August 2016. The Board notes the Veteran has not provided these records to VA, or authorized their release, so that they may be associated with his claims file and they are not currently of record. The duty to assist is a two-way street, and the Veteran cannot sit idly by when his participation is necessary for the development of evidence in his case. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the duty to assist is a two-way street that requires a claimant's active participation in a claim for VA benefits). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for prostate cancer that are not already of record, to include all records from the Veteran's urologist. 2. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.