Case A26040867

FREDERIC P. GALLUN · 2026 · Case ID: A26040867

MIXED

Summary

The Veteran, a Navy Veteran who served from August 1968 to April 1970, sought an earlier effective date for service connection for coronary artery disease, diabetes mellitus type II, diabetic nephropathy, and prostate cancer. The Veteran initially claimed these conditions in September 2011 and continuously pursued them. Service connection was granted pursuant to the PACT Act with an effective date of August 10, 2022. The Veteran argued for an earlier effective date, citing in-service exposure to Agent Orange in Okinawa, Japan, or toxins like lead paint and dust aboard the USS Rehoboth. The Board noted conceded exposures to asbestos, industrial solvents, PFAS, combustion products, firefighting foams, diesel exhaust, paint, benzene, lead, PCBs, CARC Paint, CO2, and CO. While VA medical opinions in April 2024 found the conditions less likely than not due to toxic exposures aboard the USS Rehoboth, a private medical opinion from Dr. J.D. in December 2021 opined it was more likely than not that the disabilities were caused by in-service lead exposure. The Board found the evidence in equipoise regarding the link between the conditions and the Veteran's toxic exposures, resolving doubt in the Veteran's favor and granting service connection from September 29, 2011. However, the case was remanded for the RO to determine the appropriate ratings for these conditions from September 29, 2011, to August 10, 2022, and then to decide entitlement to an earlier effective date for special monthly compensation (housebound) and Dependents' Educational Assistance.

Rationale

Evidence in equipoise regarding toxic exposure; Benefit of the doubt resolved in Veteran's favor; Granted effective September 29, 2011

Service Branch

NAVY

Special Benefit

SMC - HOUSEBOUND; EARLIER EFFECTIVE DATE

Docket No.

250613-552819

Full Decision Text

Citation Nr: A26040867
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250613-552819
DATE: April 30, 2026

ORDER

Entitlement to an earlier effective date for the grant of entitlement to service connection for coronary artery disease, status-post myocardial infarction, is granted.

Entitlement to an earlier effective date for the grant of entitlement to service connection for diabetes mellitus type II is granted.

Entitlement to an earlier effective date for the grant of entitlement to service connection for diabetic nephropathy is granted.

Entitlement to an earlier effective date for the grant of service connection for prostate cancer is granted.

REMANDED

Entitlement to an earlier effective date for the grant of entitlement to special monthly compensation based on housebound status is remanded.

Entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance under 38 U.S.C. chapter 35 is remanded.

FINDINGS OF FACT

1. The Veteran's claim seeking entitlement to service connection for coronary artery disease, diabetes mellitus, diabetic nephropathy, and prostate cancer was received by VA on September 29, 2011, and the Veteran has continuously pursued his claim for benefits since that time.

2. Resolving reasonable doubt in the Veteran's favor, the Veteran's coronary artery disease, status-post myocardial infarction, is at least as likely as not related to an in-service toxic exposure.

3. Resolving reasonable doubt in the Veteran's favor, the Veteran's diabetes mellitus is at least as likely as not related to an in-service toxic exposure.

4. Resolving reasonable doubt in the Veteran's favor, the Veteran's diabetic nephropathy is at least as likely as not related to an in-service toxic exposure.

5. Resolving reasonable doubt in the Veteran's favor, the Veteran's prostate cancer is at least as likely as not related to an in-service toxic exposure.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for coronary artery disease, status-post myocardial infarction, have been met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400.

2. The criteria for entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for diabetes mellitus type II have been met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400.

3. The criteria for entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for diabetic nephropathy have been met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400.

4. The criteria for entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from August 1968 to April 1970. The Board recognizes the Veteran's service to our country, and the sacrifices it necessarily entailed.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

On the June 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On November 3, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the June 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b
Veteran withdrew the hearing request.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Earlier Effective Dates

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation and DIC are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400.

The effective date for an increased rating claim will be the date of receipt of the claim, or the date entitlement arose, unless it is factually ascertainable that an increase occurred during the one-year period prior to the filing of a non-initial increased rating claim. 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010).

If the claim is received within one year after separation from service, the effective date based upon a grant of direct service connection will be the day following separation from active service or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2).

In regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

For supplemental claims received more than one year after the date on which the agency of original jurisdiction (AOJ) issues a notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). Continuous pursuit of a claim or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year of the rating decision. If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, allowing the effective date to relate back to the date of receipt of the initial claim. See 38 C.F.R. § 3.2500(h)(1). However, supplemental claims received more than a year after notice of a decision do not maintain continuous pursuit and, accordingly, result in an effective date that will be no earlier than the date of receipt of the supplemental claim instead of the initial claim. 38 C.F.R. § 3.2500(h)(2).

Effective March 24
and properly filing an appropriate review option, generally within one year of the rating decision. If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, allowing the effective date to relate back to the date of receipt of the initial claim. See 38 C.F.R. § 3.2500(h)(1). However, supplemental claims received more than a year after notice of a decision do not maintain continuous pursuit and, accordingly, result in an effective date that will be no earlier than the date of receipt of the supplemental claim instead of the initial claim. 38 C.F.R. § 3.2500(h)(2).

Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Non-standard narrative communications/submissions previously construed as informal claims will be considered a request for an application for benefits. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014) (where a claimant submits an informal claim, VA will deem it a request for an application for benefits). The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See id.

The amended regulation also allows a claimant to submit an "intent to file a claim," which operates similarly to the informal claim process. Specifically, 38 C.F.R. § 3.155(b) provides that, if VA receives a complete application form within one year of the receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. There are three ways in which a claimant may submit an intent to file a claim: (i) by electronically initiating and saving a benefits application in a claims-submission tool with a VA web-based electronic claims application system; (ii) by submitting a written intent, signed and dated on the intent to file a claim form prescribed by the Secretary; or (iii) by orally communicating intent to designated VA personnel that is subsequently recorded in writing and documented in the claimant's records. 38 C.F.R. § 3.155(b).

For claims other than supplemental claims, only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file a claim for that benefit, though multiple issues may be contained within a complete claim. In the event multiple complete claims for a benefit are filed within one year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim. 38 C.F.R. § 3.155(d)(1)(ii).

1. Entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for coronary artery disease, status-post myocardial infarction, is granted.

2. Entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for diabetes mellitus type II is granted.

3. Entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for diabetic nephropathy is granted.

4. Entitlement to an effective date of September 29, 2011, for the grant of entitlement to service connection for prostate cancer is granted.

Issues 1-4: The Veteran seeks entitlement to an effective date earlier than August 10, 2022, for the grant of entitlement to service connection for coronary artery disease, diabetes mellitus type II, diabetic nephropathy, and prostate cancer.

The Veteran filed a claim for coronary artery disease, diabetes mellitus type II, diabetic nephropathy, and prostate cancer that was received by VA on September 29, 2011. He continuously pursued his claims until service connection for the conditions was granted pursuant to the PACT Act by a January 2023 rating decision. Because service connection was granted pursuant to the PACT Act, an effective date of August 10, 2022, was assigned
is granted.

The Veteran contends that service connection is warranted from September 29, 2011, based on exposure to Agent Orange at Okinawa, Japan or exposure to toxins such as lead paint and dust aboard the USS Rehoboth. Exposure to asbestos, industrial solvent, PFAS, combustion products from fires (e.g. polycyclicaromatic hydrocarbons, particulate matter), chemicals in firefighting foams (e.g. perand polyfluorinated substances), flame retardants, diesel exhaust, as well as other hazards, gases, paint, benzene, lead, PCBs, CARC Paint, PFAS, carbon dioxide (CO2) and carbon monoxide (CO) has been conceded. See Other (April 2, 2024).

As previously noted, the Board finds the Veteran continuously pursued his claims since September 29, 2011. Additionally, the Veteran was diagnosed with coronary artery disease, diabetes mellitus, a kidney condition, and prostate cancer at the time of his September 2011 claim. Therefore, whether an effective date earlier than August 10, 2022, can be assigned depends on whether there is a basis to grant service connection other than pursuant to the PACT Act.

April 2024 VA medical opinions concluded that the Veteran's diabetes mellitus, coronary artery disease, and prostate cancer were less likely than not due to his toxic exposures aboard the USS Rehoboth. The examiner's rationale was that there is no evidence in peer reviewed literature supporting the indicated toxic exposure caused the claimed condition. See C&P Exam (April 8, 2024).

However, in December 2021, the Veteran submitted a private medical opinion from Dr. J.D., who opined that it is more likely than not that the Veteran's disabilities were caused by his in-service exposure to lead, and referred to studies that he asserted supported this conclusion. See Resume (December 9, 2021).

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's coronary artery disease, diabetes mellitus type II, diabetic nephropathy, and prostate cancer are related to the Veteran's in service toxic exposure to asbestos, industrial solvent, PFAS, combustion products from fires (e.g. polycyclicaromatic hydrocarbons, particulate matter), chemicals in firefighting foams (e.g. perand polyfluorinated substances), flame retardants, diesel exhaust, as well as other hazards, gases, paint, benzene, lead, PCBs, CARC Paint, PFAS, carbon dioxide (CO2) and carbon monoxide (CO). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the claimed disabilities from September 29, 2011, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to an earlier effective date for the grant of entitlement to special monthly compensation based on housebound status is remanded.

2. Entitlement to an earlier effective date for the grant of eligibility for Dependents' Educational Assistance under 38 U.S.C. chapter 35 is remanded.

The Veteran seeks entitlement to an effective date earlier than August 10, 2022, for the grant of entitlement to special monthly compensation based on housebound status and the grant of eligibility to Dependents' Educational Assistance (DEA).

Eligibility to special monthly compensation and DEA is dependent on meeting certain criteria, including specific ratings for a veteran's service-connected disabilities. Although the Board has determined that the Veteran met the criteria for service connection for diabetes mellitus, diabetes nephropathy, coronary artery disease, and prostate cancer from September 29, 2011, initial ratings from that date have not yet been assigned by the RO in the first instance, and the Board finds that the issues of entitlement to an effective date earlier than August 10, 2022, for the grant of entitlement to special monthly compensation based on housebound status and the grant of eligibility to Dependents' Educational Assistance (DEA) cannot be decided until ratings are determined. Accordingly, the issues are remanded to the RO to address after determining the appropriate ratings for the Veteran's service-connected diabetes mellitus, diabetes nephropathy, coronary artery disease, and prostate cancer for the period from September 29, 2011, to August 10, 2022.

The matters are REMANDED for the following action:

1. Determine the appropriate ratings for the Veteran's service-connected diabetes mellitus type II, diabetes nephropathy, coronary artery disease status-post myocardial infarction, and prostate cancer for the period from September 29, 2011, to August 10, 2022.

2. Thereafter, determine whether the Veteran meets the criteria for a grant of entitlement to special monthly compensation based on housebound status and has eligibility to Dependents' Educational Assistance (DEA) prior to August 10, 2022.

Frederic P. Gallun

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. D. Anderson, 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.

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