Citation Nr: 21009157 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-55 177 DATE: February 19, 2021 ORDER Entitlement to an effective date of October 18, 2016, for the grant of service connection for prostate cancer for the purposes of accrued benefits, is granted. FINDING OF FACT 1. The Veteran died in May 2020. The appellant is his surviving spouse. 2. The Veteran’s intent to file was received on October 18, 2016 in the form of a VA 21-256b. There are no communications prior to this date reflecting an intent to file this claim. CONCLUSION OF LAW The criteria for an effective date earlier than January 23, 2017, for the grant of service connection for prostate cancer for purposes of accrued benefits, have been met. 38 U.S.C. § 5110, 7104; 38 C.F.R. §§ 3.1(r), 3.400, 3.816, 3.1010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1970. His service included duty in the Republic of Vietnam. The Veteran died in May 2020. The Veteran’s surviving spouse has been successfully substituted as appellant on the Veteran’s claim of entitlement for an earlier effective date. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the appellant testified before the undersigned Veteran’s Law Judge at a virtual hearing. A transcript of the hearing is of record. Entitlement to an effective date prior to January 23, 2017 for the grant of service connection for prostate cancer The appellant is in receipt of service connection for prostate cancer, for purposes of accrued benefits. She seeks entitlement to an effective date prior to January 23, 2017, based on the Veteran’s submission of an intent to file on October 18, 2016. Because the Veteran was granted service-connection within one year of his intent to file, an earlier effective date is warranted. The VA RO granted service connection on a presumptive basis in a March 2017 rating decision, as the Veteran was presumed exposed to herbicides while serving in the Republic of Vietnam. 38 C.F.R. §§ 3.307, 3.309(e). The RO established an effective date of January 23, 2017, the date the VA received the Veteran’s formal claim on his VA Form 21-526EZ. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. If the claim is received more than a year after separation, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1. Upon receipt of an informal claim or intent to file, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). As is relevant here, the Veteran has confirmed service in the Republic of Vietnam, and therefore has confirmed toxic herbicide exposure. If a veteran was exposed to an herbicide agent during active military, naval, or air service in Vietnam, then certain diseases, such as prostate cancer, shall be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), 3.313. Prostate cancer was added to the list of presumptive diseases for which service connection is granted secondary to herbicide exposure in November 1996. It thereby became subject to the orders of the United States District Court for the Northern District of California (District Court) in the Nehmer class action. Subject to that class acton, VA has promulgated special rules bearing on the assignation of effective dates for presumptively service-connected disabilities based on exposure to herbicides agents. 38 C.F.R. § 3.816; Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. United States Veterans' Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. Veterans' Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002). Specifically, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including prostate cancer. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816 (c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816 (c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, the Veteran filed a Supplemental Claim for Compensation (VA 21-256b) claiming entitlement to service connection for prostate cancer. The VA Form 21-256b was received by the VA via fax on October 18, 2016. In response, the VA mailed a Request for Application letter to an incorrect address, detailing his responsibility to submit his claim using the VA Form 21-526EZ. After realizing the mailing error, he submitted a formal claim on January 23, 2017. At the September 2020 hearing, the appellant argued that the VA 21-256b submission should be recognized as an intent to file. The Board finds that his submission of the VA 21-256b serves as an intent to file a service connection claim. A March 2017 rating decision granted service connection for prostate cancer, as due to exposure to herbicide agents during service in Vietnam, effective January 23, 2017. As such, he is a Nehmer class member. However, the Veteran was not denied service connection for prostate cancer between September 25, 1985, and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and November 7, 1996, the date on which the liberalizing law adding prostate cancer as a disease presumptively due to in-service exposure to herbicides became effective. See Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). As such, the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). Because this appeal deals with an initial grant of service connection, the proper date of service connection should be either the date of the claim, or the date entitlement arose, whichever is later. As discussed above, the Board liberally construes the Veteran’s submission of the VA 21-256b as an “intent to file”. Because an “intent to file” will effectively save the date for a formal claim filed within one year of that intent to file, in this matter, that date would be October 18, 2016. Therefore, the Board finds that, for effective date purposes, this is the date of receipt for the Veteran’s intent to file his claim for service connection. Considering the above, the Board finds that an earlier effective date is warranted. Based on the Veteran’s submission of a formal claim within one year of his intent to file, the Board finds the proper effective date is October 18, 2016. See 38 C.F.R. § 3.155. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald