Citation Nr: A21017587 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 190226-31694 DATE: November 1, 2021 ORDER Entitlement to an earlier effective date of August 15, 2010 for the grant of compensation under 38 U.S.C.§ 1151 for prostate cancer is granted. FINDINGS OF FACT 1. VA received the Veteran's claim of entitlement to compensation for prostate cancer pursuant to 38 U.S.C. § 1151 on August 12, 2011. 2. The evidence of record shows that the injury occurred on August 15, 2010, as it was this date that the Veteran first realized the continuing injury of his prostate cancer resulting from VA's failure to timely diagnose and treat the cancer. CONCLUSION OF LAW The criteria for an effective date of August 15, 2010 for the grant of 38 U.S.C. § 1151 compensation for prostate cancer have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted the Veteran's claim for compensation under 38 U.S.C. § 1151 for prostate cancer and the Veteran's disagrees with the effective date assigned for the grant of the § 1151 compensation. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran selected the Hearing lane with a Board hearing when he opted into the AMA review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) in February 2019. Accordingly, the Board will consider the evidence of record within 90 days after his Board hearing on October September 22, 2021. In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. Entitlement to an earlier effective date prior to August 12, 2011 for the grant of compensation under 38 U.S.C.§ 1151 for prostate cancer. In the January 2016 rating decision, the RO awarded compensation for prostate cancer under 38 U.S.C. § 1151 with a 100 percent disability rating effective August 12, 2011, the date of receipt of claim. The Veteran asserts an earlier effective date of August 15, 2010 for the award of compensation pursuant to 38 U.S.C. § 1151 is warranted because he first learned of the prostate cancer diagnosis on that date, and he filed the compensation benefits claim within one year of the diagnosis. When a veteran suffers an injury or an aggravation of an injury resulting in additional disability or death as the result of VA training, hospitalization, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability or death were service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. With respect to compensation based upon disability caused by VA medical treatment pursuant to 38 U.S.C.§ 1151, the effective date will be the date the injury or aggravation was suffered if the claim is received within one year of that date, otherwise the effective date will be the date of the receipt of the claim for such benefits. 38 C.F.R. § 3.400(i)(1). Here, the Veteran initially filed a claim for compensation under 38 U.S.C. § 1151 contending that his VA primary care physician had refused his requests for digital rectal examinations every year from 2004 to 2009 until the year of 2010 when his prostate cancer was diagnosed after a rectal examination was performed by a new primary care physician. He claimed that if a rectal examination had been performed earlier than 2010, his cancer would have been detected at an earlier stage. VA treatment records indicate that the Veteran was seen for routine visit on June 28, 2010 and found to have elevated PSA. He was referred for urology consultation. A July 14, 2010 VA urology consultation note shows that the Veteran had abnormal prostate examination. On digital rectal examination, there was a nodule approximately 5mm fixed was found on the right lobe. Biopsy was performed on August 5, 2010 and a diagnosis was made on August 15, 2010 based on test results showing the presence of prostate cancer cells. A December 2015 VA examiner noted that the delay in the Veteran's prostate cancer diagnosis caused the continuance or progress of his prostate cancer. Specifically, the examiner provided an opinion that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part by not providing yearly digital rectal examinations, and that VA failed to timely diagnose and thus properly early treat the cancer, which caused "the continuance or progress of this disease." The Board concludes that entitlement to an effective date of August 15, 2010, but not earlier, for the grant of 38 U.S.C. § 1151 compensation for prostate cancer is warranted. Resolving any reasonable doubt in favor of the Veteran, the Board finds that under the specific facts of this case that the event of August 15, 2010 constitutes an injury under 38 C.F.R. §§ 3.102, 3.400(i)(1). Here, the evidence of record shows that the injury occurred on August 15, 2010, as it was the first date that the Veteran realized his injury while VA failure to timely diagnose and treat his prostate cancer caused the "continuance or progress of the disease," which constitutes a continuous injury. The Veteran filed his claim for compensation on August 12, 2011, within one year of the date of injury. Therefore, the effective date must be the date of injury. Accordingly, under the laws and regulations pertaining to effective dates, the Board finds that August 15, 2010 is the appropriate effective date for the grant of entitlement to compensation for prostate cancer pursuant to 38 U.S.C. § 1151. See 38 C.F.R. § 3.400(i)(1). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.