Citation Nr: 21072263 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-52 726 DATE: December 2, 2021 ORDER An effective date prior to October 23, 2017 for the grant of service connection for prostate cancer is denied. An effective date prior to January 13, 2018 for the grant of service connection for diabetes mellitus type II is denied. FINDINGS OF FACT 1. The claim giving rise to the grant of service connection for prostate cancer was received by VA on October 23, 2017; this disability was diagnosed in March 2015, at which time entitlement to service connection arose on a presumptive basis. 2. The claim giving rise to the grant of service connection for diabetes mellitus was received by VA on January 13, 2018; this disability was diagnosed in December 2005, at which time entitlement to service connection arose on a presumptive basis. CONCLUSIONS OF LAW 1. The criteria for establishing an effective date prior to October 23, 2017 for the award of service connection for prostate cancer have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for establishing an effective date prior to January 13, 2018 for the award of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1960 to July 1966. For his meritorious service, he was awarded (among other decorations) the Vietnam Service Medal. The Veteran testified before the undersigned Veterans Law Judge at an August 2021 virtual hearing. A transcript of this proceeding has been associated with the record. Earlier Effective Dates The Veteran is pursuing an earlier effective date than October 23, 2017 for the award of service connection for prostate cancer, and January 13, 2018 for the award of service connection for diabetes mellitus. As these appeals require similar analyses, they will be addressed simultaneously herein. The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran's separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the Veteran submitted a claim seeking service connection for prostate cancer which was received by VA on October 23, 2017, more than one year following his separation from service. See October 2017 VA Form 21-526EZ. The medical evidence establishes that he was diagnosed with this condition in March 2015, such that service connection was awarded on a presumptive basis due to his service in Vietnam. See, e.g., February 2018 VA examination (noting a March 2015 onset); February 2018 rating decision (awarding service connection). Similarly, the Veteran submitted a claim seeking service connection for diabetes which was received by VA on January 13, 2018, more than one year following his separation from service. See January 2018 VA Form 21-526EZ. The medical evidence establishes that he was diagnosed with this condition in December 2005, such that service connection was awarded on a presumptive basis due to his service in Vietnam. See, e.g., February 2018 VA examination (noting a December 2005 onset); February 2018 rating decision (awarding service connection). Thus, the claims giving rise to the grants of service connection were received by VA on October 23, 2017 (for prostate cancer) and January 13, 2018 (for diabetes). The medical evidence clearly shows that these disorders were diagnosed prior to their respective claims, such that service connection was warranted on a presumptive basis as of the diagnosis dates. VA law mandates that an effective date correspond with the date of the claim or the date that entitlement arosewhichever date is later. Thus, the currently assigned dates represent the earliest assignable dates per VA regulations. In offering these findings, the Board has considered whether there is any evidence of record which may reasonably be construed as an informal claim for benefits. 38 C.F.R. § 3.155(a). Here, the claims file contains a letter dated November 19, 2015 which discusses the Veteran's prostate cancer and diabetes. On its face, this letter may have reasonably been construed as an informal claim giving rise to earlier effective dates in this case. However, this letter discusses circumstances as recent as 2017 and was not received by VA until November 2018. Thus, it is apparent that this letter was neither drafted nor submitted in November 2015, and that the header date is inaccurate. Thus, this letter does not stand as credible evidence of an informal claim upon which the current appeals may now be granted. Miller v. Wilkie, 32 Vet. App. 249 (2020). The Veteran further contends that earlier effective dates are warranted in this case because he was not previously informed of his right to submit a claim for benefits. See, e.g., November 2018 letter; August 2021 hearing transcript. However, VA does not have an affirmative duty to counsel potential claimants as to their right to submit a claim, such that this argument consequentially fails. See, e.g., 38 C.F.R. §§ 3.159, 21.1031, 21.1032 (regarding VA's affirmative duties to notify and assist). Though the issue of whether earlier effective dates may be allowed on the basis of equitable tolling (as in a situation such as this, where a claimant contends that he was not aware of his possible entitlement to benefits) has been a topic of great interest, at this moment, both the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit have held that equitable tolling may not serve to allow an effective date outside of the laws and regulations governing veterans benefits. Moreover, the Veteran argues that his effective dates should correspond with the dates of his diagnoses rather than his VA claims. See August 2021 hearing transcript. For those reasons set forth above, this contention also fails. The Board appreciates the Veteran's service and understands his contentions, but it is required to apply the laws and regulations governing the provision of veterans benefits. Doing so here compels the result as discussed. Accordingly, the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is inapplicable, and the appeals are denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.