Citation Nr: 21029571 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-14 568 DATE: May 13, 2021 ORDER Entitlement to an effective date of July 24, 2001, for the award of service connection for residuals of prostate cancer is granted. FINDING OF FACT 1. On July 24, 2001, the Veteran filed his original claim for entitlement to service connection for prostate cancer; there is no record of any prior communication indicating an intent to file a claim for service connection for prostate cancer. 2. A January 2002 rating decision denied the original claim for service connection for prostate cancer; the Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 3. A June 2005 rating decision reopened the claim for service connection for prostate cancer, but denied the claim on the merits; the Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 4. In May 2010, new service department records were effectively associated with the claims file that formed the basis of conceding the Veteran's exposure to herbicide agents in Thailand. CONCLUSION OF LAW The criteria for entitlement to an effective date of July 24, 2001, for the award of service connection for residuals of prostate cancer are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156(c), 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from October 1966 to October 1970. These matters come before the Board of Veteran's Appeals (Board) on appeal from a July 2015 rating decision by the Regional Office (RO). See also Rating decision, March 2016. Entitlement to an effective date prior to February 3, 2015, for the award of service connection for residuals of prostate cancer The Veteran claims entitlement to an effective date prior to February 3, 2015, for the award of service connection for residuals of prostate cancer. The Veteran filed an original claim for service connection for prostate cancer on July 24, 2001 (stamped-received date). There is no record of any communication from the Veteran prior to that date indicating any intent to file a claim for service connection for prostate cancer. A January 2002 rating decision denied the claim on the basis that, among other things, exposure to herbicide agents could not be presumed because no service in the Republic of Vietnam was shown. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the January 2002 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). At the time the Veteran filed his original claim, the evidence of record included July 1996 medical records showing diagnosed adenocarcinoma and that a prostatectomy was performed. See Records, received September 2001 at p.23 of 75. The Board acknowledges that prostate cancer is one of the diseases listed in 38 C.F.R. § 3.309(e) for which service connection may be presumed in the case of certain veterans exposed to herbicide agents. There is no evidence in the Veteran's service personnel records, however, that he had any service in the Republic of Vietnam, such that exposure to herbicide agents could not be presumed. See 38 C.F.R. § 3.307(a)(6). Rather, his service records show he served in Thailand, which will be discussed in greater detail below. In January 2005, the Veteran filed a request to reopen the claim. A June 2005 rating decision essentially reopened the claim but denied it on the merits, again citing to a lack of service in the Republic of Vietnam such that exposure to herbicide agents could not be presumed. The Veteran did not file a notice of disagreement as to the prostate claim or submit new and material evidence within one year of notice of the June 2005 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). In May 2010, the VA Compensation Service acknowledged exposure to herbicide agents, such as Agent Orange, on a direct, occupational, or facts found basis for certain veterans who served on Royal Thai Air Force Bases (RTAFBs) in Thailand. See Compensation Service Bulletin, May 2010, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea. The "service records" on which the VA Compensation Service based their decision included a declassified 1973 Department of Defense document entitled Project CHECO Southeast Asia Report: Base Defense in Thailand. See Compensation Service Bulletin, December 2011, Effective Date for Claims Involving Exposure to Agent Orange with Thailand Base Perimeter Duty. On February 3, 2015, the Veteran filed a request to reopen the claim. A July 2015 rating decision reopened the claim, apparently conceded exposure to herbicide agents based on the Veteran's service in Thailand, and granted presumptive service connection for residuals of prostate cancer, effective February 3, 2015. See Rating decision, March 2016 (noting service connection was presumed based on his service in Thailand). The Veteran appealed seeking entitlement to an earlier effective date. Generally, the effective date of an award based on a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a) (2012); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) ("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed"). In this case, the Veteran filed his application to reopen the claim on February 3, 2015. Thus, generally, the earliest possible effective date under 38 U.S.C. § 5110(a) would be February 3, 2015. However, under 38 C.F.R. § 3.156(c), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." In cases where a claim is reconsidered under 38 C.F.R. § 3.156(c) based on new and relevant service records, "the original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted." Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also 38 C.F.R. § 3.156(c)(3). Because new and relevant service records (the Project CHECO Report) involving exposure to herbicide agents in Thailand are deemed by the VA Compensation Service as having been received in May 2010, which service records served as the basis for conceding exposure to herbicide agents and granting presumptive service connection for prostate cancer, the Board finds that reconsideration of the Veteran's original claim from July 2001 was warranted under 38 C.F.R. § 3.156(c), and that the effective date of the award should have been the date of the original claim, July 24, 2001. See Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); 38 C.F.R. § 3.156(c)(3). Therefore, the Board finds that entitlement to an earlier effective date of July 24, 2001, is warranted for the award of service connection for residuals of prostate cancer. The Board acknowledges that at the Board hearing, the Veteran indicated that he wished for the effective date to relate back to the date of his diagnosis in 1996. While the Board is sympathetic to the fact that the Veteran was diagnosed with adenocarcinoma of the prostate in 1996 and underwent a prostatectomy that year, unfortunately, by law, the effective date of a compensation award cannot be earlier than the date on which a claim was filed (except in cases where a claim was filed within one year of separation). See 38 U.S.C. § 5110(a)-(b); 38 C.F.R. § 3.400. Therefore, the earliest possible date for the award of service connection in this case is the claim date of July 24, 2001. In summary, the Board concludes that entitlement to an earlier effective date of July 24, 2001, for the award of service connection for prostate cancer is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Juliano, 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.