Case A23007090

Summary

The Veteran, a Veteran who served from October 1967 to May 1970, appeals the AOJ's decision regarding the effective date for service connection for prostate cancer. The Veteran contends that while diagnosed in November 2019, his prostate cancer had manifested symptoms by May 7, 2019, the date he filed his claim. The Board reviewed the evidence, including the Veteran's testimony at an April 2022 hearing and a private medical opinion from Dr. [H] submitted within 90 days post-hearing. Dr. [H] opined it was "quite likely" the cancer existed in May 2019. The Board found this, along with earlier complaints of prostate trouble and the Veteran's testimony, created an approximate balance of evidence. Applying the benefit of the doubt, the Board found the probative evidence showed the cancer manifested on or before May 7, 2019. Consequently, the Board granted an effective date of May 7, 2019, for the award of service connection for prostate cancer.

Rationale

Prostate cancer manifested symptoms by May 7, 2019; Private medical opinion opined cancer likely existed in May 2019; Veteran testimony corroborated earlier symptoms; Evidence in approximate balance; Benefit of the doubt applied

Full Decision Text

Citation Nr: A23007090
Decision Date: 04/11/23	Archive Date: 04/11/23

DOCKET NO. 201020-115371
DATE: April 11, 2023

ORDER

An effective date of May 7, 2019; but no earlier, for the award for service connection for prostate cancer is granted, subject to the laws and regulations governing the award of monetary benefits.

FINDING OF FACT

The most probative evidence of record shows that the Veteran's prostate cancer manifested symptoms from the date of the Veteran's claim.

CONCLUSION OF LAW

The criteria for an effective date of May 7, 2019; but no earlier, for the award of service connection for prostate cancer have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155; 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1967 to May 1970. 

In October 2020, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal electing the Hearing docket to review a September 2020 decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

A Board hearing was held in April 2022 and a transcript is of record. See April 2022 Hearing Transcript. Therefore, the Board may only consider the evidence of record at the time of the September 2020 rating decision as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).

1. Entitlement to an earlier effective date for service connection of prostate cancer.

The Veteran contends that he is entitled to service connection prior to November 26, 2019, for prostate cancer. Specifically, the Veteran contends that while he was not formally diagnosed with prostate cancer until November 26, 2019, his prostate cancer had already manifested symptoms when he filed his claim for entitlement to service connection on May 7, 2019.

For service connection claims, the effective date is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. See 38 C.F.R.§ 3.400 (b)(2). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. See id. As the Veteran does not allege, and the evidence does not show, that he filed a claim within one year following separation, the latter provision applies here.

The record shows that the Veteran was diagnosed with prostate cancer on November 26, 2019. See February 2020 Medical Treatment Record - Non-Government Facility at 1. Private medical records as early in the record as February 2007 show complaints of inflammation and other prostate trouble, but no diagnosis of prostate cancer. 

During his April 2022 hearing, the Veteran testified that although his diagnosis of prostate cancer occurred in November 2019, he had been experiencing symptoms of his prostate cancer as of the date he made his claim for compensation. See April 2022 Hearing Transcript at 5-6.

Within 90 days following his hearing, the Veteran submitted a letter from Dr. [H]. See Medical Treatment Record - Non-Government Facility. Dr. [H] opined, in relevant part, as follows:

"Prostate cancers as a group tend to be very slow growing and take oftentimes years before they express themselves with higher PSAs, etc. Therefore it is quite likely that [the Veteran's] prostate cancer did exist in May 2019 and perhaps even for significant period of time prior to that before it started to raise his PSA to create significant suspicion." Id.

(Continued on the next page)

?

The Board observes that "quite," in the ordinary usage, is defined as follows: (1) wholly, completely; (2) to an extreme; (3) to a considerable extent. See https://www.merriam-webster.com/dictionary/quite. So defined, the Dr. [H] letter opines that it is either completely; extremely; or to a considerable extent likely that the Veteran's prostate cancer existed as of the date of the Veteran's claim for benefits. The Board finds that, together with the Veteran's testimony and the record of earlier complaints of prostate trouble in the record, the evidence is at least approximately balanced in favor of the Veteran's contentions.

Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the probative evidence of record shows that the Veteran's prostate cancer manifested on or before May 7, 2019; which is the earliest effective date
 considerable extent. See https://www.merriam-webster.com/dictionary/quite. So defined, the Dr. [H] letter opines that it is either completely; extremely; or to a considerable extent likely that the Veteran's prostate cancer existed as of the date of the Veteran's claim for benefits. The Board finds that, together with the Veteran's testimony and the record of earlier complaints of prostate trouble in the record, the evidence is at least approximately balanced in favor of the Veteran's contentions.

Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the probative evidence of record shows that the Veteran's prostate cancer manifested on or before May 7, 2019; which is the earliest effective date for which service connection may be granted because it is the date of the Veteran's claim. 38 U.S.C. § 5110(a). Accordingly, an effective date of May 7, 2019; but no earlier, for the award for service connection for prostate cancer is granted, subject to the laws and regulations governing the award of monetary benefits. 38 U.S.C. § 5107 (b); See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

 

 

R. Costello

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Divis, Robert A.

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.