Citation Nr: 21013057 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 19-31 198 DATE: March 8, 2021 ORDER Entitlement to an earlier effective date than October 21, 2011, for the grant of service connection for prostate cancer is denied. FINDING OF FACT In October 2011, the Veteran filed an application to reopen a claim for entitlement to service connection for prostate cancer. No formal or informal claim to reopen was filed prior to October 21, 2011. CONCLUSION OF LAW The criteria for an effective date earlier than October 21, 2011, for the award of service connection for prostate cancer have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to May 1989, and from November 1989 to January 2006. In January 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Earlier Effective Date Legal Regulations and Principles The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 . The implementing regulation clarifies that the effective date of an evaluation and an award of compensation based on an original claim “will be the date of receipt of the original claim or the date the entitlement arose, whichever is later.” 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a) (2012); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means 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) (2014). The Board notes that “informal claims” are no longer recognized by VA as of March 24, 2015. 38 C.F.R. § 3.155 (a). However, for claims filed prior to March 24, 2015, as is the case here, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155 (a) (2014). Moreover, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). If a claim is reviewed at the claimant’s request, more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114 (a)(3). Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 38 C.F.R. § 3.309 (f). The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. 82 Fed. Reg. 4173 (Jan. 13, 2017). However, prostate cancer is not among the listed diseases associated with the contaminants present in the water supply at Camp Lejeune. Analysis Here, in an August 2018 rating decision, the RO granted service connection for prostate cancer, with an effective date of October 21, 2011. The Veteran contends that he is entitled to an earlier effective date because his prostate problems began while he was in service. Specifically, the Veteran points to an in-service treatment record which reflected that the Veteran complained of painful and burning sensation during urination. Furthermore, the Veteran contends that since service connection was awarded based upon a finding that his prostate cancer, as a chronic disease, manifested to a degree of ten percent within one year of his separation from service, he is entitled to an earlier effective date. See December 2018 Notice of Disagreement. Here, the Board acknowledges that the Veteran originally filed a claim for a prostate cancer in December 2008. Subsequently, a May 2009 rating decision denied the Veteran’s claim for service connection for prostate cancer. The Veteran did not appeal, nor was new and material evidence received, within one year of notification of such decision. Absent a showing of clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 C.F.R. §§ 3.104, 19.118, 19.153. The Veteran filed a claim to reopen his claim for service connection for prostate cancer on October 21, 2011. The Veteran’s claim was subsequently reopened and granted effective the date of the Veteran’s claim to reopen, October 21, 2011. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (q)(2). Given such, the earliest effective date for this claim is October 21, 2011. A review of the evidence does not show any informal or formal claims to reopen filed prior to October 21, 2011. Therefore, there is no legal basis upon which to assign an earlier effective date for the grant of service connection under the facts of this case. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) (“When a claim to reopen is successful and the benefit sought is awarded upon re-adjudication, the effective date is the date of the claim to reopen”). The Board also acknowledges that the Veteran’s prostate cancer was found to be a chronic disease that manifested within one year of his release from service. As such, the Veteran was granted presumptive service connection. However, in determining the effective date of the award of service connection, the issue is not the onset of the condition, rather the issue is when did the intent to apply for one or more benefits under the laws administered by VA arise. Therefore, although the finding that the Veteran’s prostate cancer, as a chronic disease, manifested within one year of his separation from service is sufficient for the award of service connection, this finding alone is insufficient for an earlier effective date than the date of the claim to reopen. Treatment for a condition without an intent to file for benefits is not sufficient to warrant an earlier effective date. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (“The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.”) See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). In other words, the onset of the service-connected condition is not the determining factor for the effective date. In addition, upon review of the medical records associated with this claims file, the Board finds there is no indication in these records that the Veteran was requesting a determination of entitlement or evidencing a belief in entitlement to a VA benefit that would warrant an effective date prior to October 21, 2011. See 38 C.F.R. § 3.1 (p). Also, during the Veteran’s Board hearing, the Veteran testified about the drinking water at Camp Lejeune. The Veteran testified that at the time of his first claim, there were no regulations with respect to contaminated water at Camp Lejeune. Thus, to the extent that the Veteran is requesting an earlier effective date based upon a liberalizing law, the Board finds that the Veteran would not be entitled to an earlier effective date than October 21, 2011. The Board notes that effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. See 38 C.F.R. § 3.309 (f). 82 Fed. Reg. 4173 (Jan. 13, 2017). However, prostate cancer is not among the listed diseases associated with the contaminants present in the water supply at Camp Lejeune. Furthermore, even if prostate cancer was among the listed diseases, the effective date of the award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). Thus, even if prostate cancer were among the listed diseases, the earliest effective date would be January 13, 2017, which is the effective date of this liberalizing law. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. In sum, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to an earlier effective date than October 21, 2011, for service-connected prostate cancer. As such, the benefit-of- the-doubt doctrine is not for application, and the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.