Citation Nr: 21041987 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 15-31 699 DATE: July 10, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for prostate cancer prior to June 1, 1993 for accrued benefits purposes is denied. FINDINGS OF FACT 1. The Veteran died in March 1997. The appellant is his surviving spouse. 2. The Veteran's claim was received on June 1, 1993 in the form of a VA 21-526. There are no communications prior to this date reflecting an intent to file this claim. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the grant of service connection for prostate cancer prior to June 1, 1993 for accrued benefits purposes have not 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 FINDINGS AND CONCLUSION The Veteran served in the Army from April 1968 to December 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 Regional Office (RO) rating decision. The appellant testified at an October 2018 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Earlier Effective Dates 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. 1. Entitlement to an earlier effective date for the grant of service connection for prostate cancer prior to June 1, 1993 for accrued benefits purposes The appellant seeks entitlement to an earlier effective date prior to June 1, 1993 for the Veterans service-connected prostate cancer. Specifically, the appellant states that the Veterans grant of service connection should date back to 1968 when he was physically stationed (boots on the ground) in Vietnam. The Veteran was granted service-connection for prostate cancer in a January 1997 rating decision with an effective date of November 7, 1996. However, a May 2014 rating decision granted an earlier effective date of June 1, 1993 based on Nehmer. After a review of the claims file, the Board finds that the Veteran's service connection claim was received by the RO on June 1, 1993. Moreover, the date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to this date. In this regard, a review of the record also fails to show that the RO received a claim or informal written communications indicative of the Veteran's desire to seek to file a claim of service connection for the disabilities on appeal. Additionally, the Board acknowledges the assertions from Veteran and the appellant that his prostate cancer is a result of his Agent Orange exposure while in Vietnam in 1968. Nevertheless, while the Board is sympathetic to the appellant's claim, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Therefore, as the date of receipt of the Veteran's claim for service connection for prostate cancer was June 1, 1993, an effective date earlier than this date for the grant of service connection for purposes of accrued benefits is denied. 38 C.F.R. § 3.400. The benefit sought on appeal is therefore denied. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 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 Vample, Erica .