Citation Nr: 0401520 Decision Date: 01/15/04 Archive Date: 01/28/04 DOCKET NO. 02-13 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than November 16, 1994, for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 (West 2002) for sterility. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from January 1970 to July 1970 and from June 1975 to May 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2000 Decision Review Officer decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). In a March 2000 rating decision, the RO effectuated the Board's grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility and assigned an effective date of October 29, 1997. The veteran appealed the effective date assigned. In a December 2000 decision, the Decision Review Officer determined that the March 2000 rating decision contained clear and unmistakable error in assigning an effective date of October 29, 1997, and granted an effective date of November 16, 1994, for the award of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility, to include entitlement to special monthly compensation for loss of use of a creative organ. The veteran asserts that an earlier effective date is warranted, and thus the appeal continues. FINDINGS OF FACT 1. In a statement received by the veteran on November 16, 1994, he complained that he had not had a normal ejaculation since having undergone a prostatectomy at a VA facility in the 1970s. 2. There was no informal claim, formal claim, or written intent to file a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility prior to November 16, 1994. CONCLUSION OF LAW The criteria for an effective date earlier than November 16, 1994, for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.155(a), 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); see Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); cf. Dyment v. Principi, 287 F.3d. 1377 (Fed. Cir. 2002) (holding that only section four of the VCAA, amending 38 U.S.C. § 5107, was intended to have retroactive effect). The final rule implementing the VCAA was published on August 29, 2001, see 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001), and is codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA as of that date. In this case, VA's duties have been fulfilled to the extent possible. First, VA must notify the veteran of evidence and information necessary to substantiate his claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was notified of the information necessary to substantiate his claim by means of the discussion in the August 2002 statement of the case. The Board notes that the determination of whether an earlier effective date is warranted is very fact specific. Thus, the statement of the case addressed the facts in this case and why the veteran was not entitled to an earlier effective date for the award of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. The veteran had argued that he should be granted an effective date of 1978 because he had raised an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 and that a 1978 rating decision denied the claim and he had not been properly informed of the denial. He also argued that the provisions of 38 C.F.R. § 3.157 applied to his claim for an earlier effective date. Thus, the veteran demonstrated that he is aware of the evidence necessary to substantiate his claim for an earlier effective date. Regardless, the Decision Review Officer provided detailed reasons and bases as to why the 1978 VA examination report was not an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151, why the 1978 rating decision did not deny a claim for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility, and why 38 C.F.R. § 3.157 did not apply to his claim for an earlier effective date. The Decision Review Officer stated that the first time the veteran had showed an intent to file a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility was in a statement received by him on November 16, 1994. Therefore, the veteran was informed that the evidence necessary to establish an earlier effective date for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility would be evidence showing that he had filed a claim, whether formal or informal, prior to November 1994. Also, in the August 2002 statement of the case, the RO provided the veteran with the regulations that address effective dates. Second, in the same document, VA must inform the veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf. In the August 2002 statement of the case, the RO informed the veteran that it must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. It told the veteran that as long as he adequately identified the records, that VA would assist in obtaining them. The RO stated that it was responsible for obtaining medical records held by any federal department or agency that the veteran identified. It further stated that it would obtain medical records from other health-care facilities as long as the veteran adequately identified the facilities, but noted that the veteran had the ultimate responsibility for obtaining those records. Third, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. §§ 3.159(c), (d) (2002). While the RO did not obtain any additional records once compensation benefits had been granted, it did not need to obtain any records, as the veteran did not indicate that there were any records that VA needed to obtain in connection with his claim for an earlier effective date. In this particular case, obtaining records would not assist the veteran in obtaining an earlier effective date, as the determination of this case rests on whether there was a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 filed prior to November 1994, and either the veteran had filed a claim prior to 1994 or he did not. While the RO did not provide the veteran with an examination in connection with his claim for an earlier effective date, such is not necessary to make a determination in this case. An examination conducted after 1994 will not assist in obtaining an effective date earlier than November 1994 for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. For the reasons stated above, the Board finds that the requirements of the VCAA have been met. II. Decision A June 1974 VA hospitalization summary report reflects the veteran underwent an open revision of bladder neck contraction and panendoscopy after complaining of difficulty with urination. An operative report reflects a definite cleft anteriorly in the shape of a "V" indicative of a hypertrophy of the lateral lobes. Some obstruction posteriorly was also noted. The veteran's postoperative course was noted as satisfactory. Diagnoses of bladder neck contraction due to hypertrophy of the prostate gland, small hiatal hernia, and anxiety, functional overlay, were noted. In a VA Form 21-4138, Statement in Support of Claim, received in May 1978, the veteran stated that he believed his service- connected disabilities for hearing loss and fractured spine had increased in severity and asked for new evaluations for these disabilities. In June 1978, the veteran submitted a statement, asserting that his disabilities were getting worse. He listed the disabilities as "serous otitis media" and "lumbar strain, chronic." An August 1978 VA examination report shows that the veteran complained of worsening problems with his service-connected back and hearing loss. He also reported that since having prostate surgery, he had been unable to ejaculate on coitus. He stated he would experience severe pain in the testicles instead of ejaculation. Physical examination revealed a well-healed suprapubic postoperative scar with very little tenderness in the area. The examiner noted tenderness on palpation over the perineum and a left inguinal hernia, which was pulsating quite severely but not protruding. The relevant diagnoses of status postoperative suprapubic prostate resection with residual epididymis obstruction and sterility, and left inguinal hernia were entered. An October 1978 rating decision shows that the RO granted a 20 percent evaluation for the service-connected low back strain and deferred the claim for an increased evaluation for hearing loss for a VA examination. In the rating code sheet, it shows the following, in part: 8. NSC [Not Service Connected] PO suprapubic prostate resection with epididymitis obstruction and sterility Inguinal hernia, left In the rating decision, the RO did not address the above- listed disabilities in its discussion. In a VA Form 21-4138, received in February 1986, the veteran stated he wanted to file a claim for increased benefits for his service-connected back and ear problems. He also stated that he wanted to look into eligibility for nonservice- connected pension. An April 1986 VA examination report shows that the veteran reported complaints relating to his prostate back in 1972, when he had an episode of urinary retention and hematuria. He reported undergoing a suprapubic prostatectomy and that since that time he reported no difficulty in obtaining an erection but that he had not ejaculated. The veteran further reported he had been married five times and had been unable to have any children with any of his wives. The examiner entered a diagnosis of status post-suprapubic prostatectomy with apparent retrograde ejaculation. He noted that the veteran had not been formally evaluated for retrograde ejaculation, but had historical support for infertility related to his surgery. In a July 1986 rating decision, the RO continued the evaluations for the service-connected back and ear disorders and denied pension benefits, stating that the veteran's disabilities were not severe enough to preclude all forms of substantially gainful employment. In a statement from the veteran, received on November 16, 1994, he stated the following, in part: In 1979 I had a left inguinal hernia repaired at a Salem hospital. At the same time I applied for a rating contending that my abdomen had been weakened due to a surgery performed by the VA in Boise, Idaho in 1970-71. At that time I was cut from my naval to the top base of my penis. I was hospitalized for over 30 days with a cathe[te]r and drain tube 1 1/2 inches below my naval. At that time I was informed that my prostate swelling was blocking my urinary opening and that the surgery would enlarge that opening so I could void properly. Since that surgery I have not had a normal ejaculation (no sperm\fluid); have not been able to have children; have had swelling of testicles; numbness and pain; and been bothered by inguinal hernias. Now I am told that my sperm is flowing back into my bladder killing the cells. I could have children (now 44 yrs old) if I wanted to go through artificial insemination. All I know is I was ferti[l]e before that surgery and now I'm not. And I cannot afford artificial insemination costs. In a February 2000 decision, the Board granted compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. In the Introduction, the Board stated the following, in part: The Board notes that the issue of sterility was listed as not service connected in an October 1978 rating decision. However, that issue was not discussed within the reasoning of the rating decision, and there is no evidence that the veteran was notified of a denial of compensation based upon a claim of sterility. Thus, the issue has been addressed on a de novo basis. In the August 2002 statement of the case, the Decision Review Officer stated that the October 1978 rating decision did not deny compensation based upon a claim of sterility. Specifically, he stated the following, in part: [A]lthough it may appear that service connection was denied in 1978, in reality it was not formally adjudicated and denied until March 1999. Historically, in 1978 it was the policy of the VA to add to rating code sheets any chronic condition[s] that were noted on examination, which may not have been claimed. In following that procedure, the veteran would not have been notified, since it was not considered to be a claim for service connection. . . . The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 2002); see 38 C.F.R. 3.400 (2003). The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date. 38 U.S.C.A. § 5110(c) (West 2002). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151(a) (2003). A claim-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) (2003). Additionally, under 38 C.F.R. § 3.155 (2003), it defines an informal claim as the following: (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, 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 juris may be considered an informal claim. Such informal claim must identify the benefit sought. . . . (b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. In addressing the requirement for identifying the benefit sought, the United States Court of Appeals for Veterans Claims (Court) has stated that such identification need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that the regulations cited above have not changed substantively from 1978 to the present time. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an effective date earlier than November 16, 1994, for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. The reasons follow. Initially, the Board notes that the veteran did not file a claim for compensation under the provisions of 38 U.S.C.A. § 1151 within one year of having undergone the surgery in 1974, and thus, he would not be entitled to an effective date back to 1974 on this basis. See 38 U.S.C.A. § 1151(c). Additionally, while the veteran initially claimed that the effective date should go back to 1974, he has subsequently dropped this argument. The veteran has asserted that the August 1978 VA examination report was an informal claim for compensation under the provisions of 38 U.S.C.A. § 1151 (back in 1978, the statute's citation was 38 U.S.C. § 351, but the Board will address it under its current citation to avoid confusion), and that the RO had denied his claim for such benefits in the October 1978 rating decision and failed to notify him, which has caused his 1978 claim to remain pending. The Board disagrees with this assertion. First, the Board does not find that the August 1978 VA examination report was an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. See 38 C.F.R. § 3.155. It is an examination report submitted by a VA physician-it is not a communication from the veteran, his representative, a Member of Congress, or an agent communicating an intent to file a claim for compensation benefits. See 38 C.F.R. §§ 3.1, 3.155(a), (b). The August 1978 examination report in no way meets the criteria for an informal claim. The veteran had not executed a power of attorney for the VA examiner to be able to submit a claim on the veteran's behalf. See 38 C.F.R. § 3.155(b). The examination report merely showed that the veteran had been unable to ejaculate since having undergone the surgery. The Board does not find that such examination report was an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151. See Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the [claimant] to seek . . . service connection. . . ."). As to the veteran's argument that the October 1978 rating decision adjudicated his claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 and failed to notify him of the denial of his claim, the Board disagrees with this assertion as well. The Decision Review Officer explained in the August 2002 statement of the case that it was standard procedure back in 1978 to list a disability that was not claimed by the claimant. There was no showing of an intent to adjudicate that claim in the rating decision. The 1978 rating decision shows that the issues were increased evaluations for service-connected disabilities. In the listing of issues being adjudicated in the rating decision, there was no listing of a claim for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility. The body of the decision did not address claims for compensation for sterility or left inguinal hernia (both of these disabilities were listed on the rating decision). The Board finds that the explanation provided by the Decision Review Officer is reasonable and that the record and law extant at that time supports the finding that a claim for compensation for sterility was neither filed nor adjudicated at that time. As stated above, the August 1978 VA examination report was not an informal claim for compensation benefits and thus VA had no duty to adjudicate the claim. The veteran's representative has argued that VA's Adjudication and Procedures Manual essentially required the rating board to adjudicate the claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility at the time of the October 1978 rating decision. Again, the Board finds that the August 1978 VA examination report was not an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility, and thus the rating board was under no duty to adjudicate a claim that had not been filed. The representative asserts that "The veteran's description of the fact that he became sterile as a result of VA treatment to the VA examiner was reduced to a writing by the VA examiner and established a 'claim' for increased compensation, to include § 351." While the VA examination report reduced the veteran's complaint of sterility to a "writing," it does not meet the qualifications of an informal claim for compensation under the provisions of 38 U.S.C.A. § 1151. The regulation is clear-the communication must come from the veteran, a representative of the veteran (who has been given a power of attorney), a Member of Congress, or someone acting as next friend of a claimant who has been determined to be incompetent. See 38 C.F.R. §§ 3.155(a), (b). Additionally, the communication must indicate an intent to apply for one or more VA benefits. Neither of these requirements are met in the August 1978 VA examination report. The Brannon case is on point to the facts in this case. See Brannon, supra. Specifically, the veteran in that case was service connected for a skin disorder and a VA examination report showed a finding by the examiner that the veteran suffered from "[t]remendous anxiety secondary to itching." Id. at 33. The veteran had alleged that this established an informal claim for secondary service connection for a psychiatric disorder. The Court found that the examination report did not establish an intent on the part of the veteran to seek secondary service connection for the psychiatric disorder. Id. at 35. It added that while the Board must interpret a claimant's submissions broadly, it was not required to conjure up issues that were not raised by the claimant. Id. In this case, the veteran's complaint to the VA examiner was made in connection with his report of his medical history. He did not express to the examiner that he was considering filing a claim for compensation benefits because of his sterility. Additionally, the veteran had submitted two written statements in connection with his claims for increased benefits (which are described above) back in 1978, where he listed specifically what disabilities for which he was seeking additional compensation-his back disorder and his ear disorder. He made no mention that he was seeking additional benefits for a disability related to his sterility. As stated above, the holding in Brannon, while argued by the veteran's representative as not being applicable, is on point in this case. The Court found that a medical record did not establish an intent on the part of the claimant to seek VA benefits. That holding is applicable in this case. As a result, the Board finds that the preponderance of the evidence is against a finding that the August 1978 VA examination report is an informal claim for compensation benefits. There is no intent expressed in that report that the veteran was going to seek benefits as a result of his sterility. The Board is aware that in the February 2000 decision, the Board made a notation in the introduction that "the issue of sterility was listed as not service connected in an October 1978 rating decision" and that such claim was not addressed in the reasoning of the rating decision. The veteran has argued that this finding by the Board is evidence that the claim had been adjudicated back in 1978 and that VA had failed to notify him of the denial and that his claim has remained pending since that time. This statement made by the Board was not a binding determination. Rather, the Board was making an observation that the issue of sterility was noted to be not service connected in the rating decision and was offering an explanation as to why it was considering the veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility on a de novo basis. There was no holding in that Board decision to the effect that the October 1978 rating decision adjudicated the claim. The August 2002 statement of the case has explained why the disability was listed on the rating decision, which, as stated above, the Board finds is reasonable in its interpretation. Alternatively, the veteran and his representative have asserted that the provisions of 38 C.F.R. § 3.157 ("Report of examination or hospitalization as claim for increase or to reopen") apply to the veteran's claim since a claim for benefits under the provisions of 38 U.S.C.A. § 1151 should be considered a claim for "increased benefits." The Board disagrees with this argument. Under 38 C.F.R. § 3.157, it allows a VA examination or hospitalization to be accepted as either a claim for increased benefits or a petition to reopen a previously denied claim. Specifically, it states the following, in part: Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of [a VA medical record] will be accepted as an informal claim for increased benefits or an informal claim to reopen. The veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility had not yet been allowed back in 1978, so the August 1978 examination report could not constitute an informal claim for increase under that clause. See Crawford v. Brown, 5 Vet. App. 33 35-36 (1993). Since there had not been a prior allowance or disallowance of a formal claim for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility for the reason that the disability was not compensable in degree, a VA medical record could not be accepted as an informal claim under 38 C.F.R. § 3.157. See also Servello, 3 Vet. App. at 199 (38 C.F.R. § 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted) (emphasis added); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records cannot be construed as an informal claim); Kessel v. West, 13 Vet. App. 9, 23 (1999) (there has not been a prior allowance or disallowance of a claim for service connection for the claimed condition, and any examination reports could not be accepted as an informal claim). Therefore, the August 1978 VA examination report cannot properly be accepted as an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. Based on the reasons stated above, the Board finds that the August 1978 VA examination report is not an informal claim for compensation benefits for sterility, and the October 1978 rating decision did not adjudicate a claim for sterility where the RO failed to notify the veteran of the denial of such claim, such that the claim could be perceived as "pending." Thus, the Board has determined that the preponderance of the evidence is against an effective date of August 1978 for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. The Board has reviewed the April 1986 VA examination report, where the veteran again reported his inability to ejaculate and stated that he had been unable to have children with his former five wives, to ascertain if such report would provide a basis which would warrant an earlier effective date in the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility and finds that, like the August 1978 VA examination report, it is not an informal claim for compensation benefits for all the same reasons expressed above as to the August 1978 VA examination report. There is no showing of an intent on behalf of the veteran to file a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 in that examination report. See 38 C.F.R. §§ 3.1, 3.155(a); see also Brannon, supra. Additionally, such medical record is not a communication from the veteran or a representative of the veteran to meet this requirement as to an informal claim. See 38 C.F.R. §§ 3.155(a), (b). Like in Brannon, the VA examiner in the April 1986 VA examination report clearly attributed the veteran's sterility to the surgery he underwent at a VA facility. Because the VA examination report in the Brannon case was not found to be an informal claim for compensation benefits in that case, the Board finds that same determination is applicable to the April 1986 VA examination report. See Brannon, supra. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the April 1986 VA examination report was an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. The first communication from the veteran, which could be construed as an informal claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility, is the November 16, 1994, statement. In that statement, the veteran was very detailed in complaining about the residuals from the prostate surgery he underwent in the 1970s. He noted he had not had a normal ejaculation and had been unable to have children. He further stated that he had been fertile prior to undergoing the surgery and then was infertile coming out of the surgery. Such statements by the veteran were expressed in a context such as to communicate an intent to apply for a VA benefit, and the statement was also submitted by the veteran himself. Therefore, that statement met all the requirements of an informal claim for compensation benefits for his sterility, and thus this is the proper effective date for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility. The Board has thoroughly reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that an effective date earlier than November 16, 1994, is warranted in this case for the reasons stated above. The Board notes that the veteran has argued that subsequent rating decisions which show a "PD" next to the listing of status post suprapubic prostatectomy with epididymitis and sterility indicates that the RO was conceding that this claim had been "Previously Denied." The Board does not know what that acronym means; however, even if it accepted the veteran's argument as true, the Board finds that such finding did not prejudice the veteran. The first time that acronym shows up in a rating decision was in a September 1995 rating decision. Prior to that, there is no showing of "PD" next to the listing of status post suprapubic prostatectomy with epididymitis and sterility. The effective date granted for compensation under the provisions of 38 U.S.C.A. § 1151 for sterility predates this rating decision. This is the basis for the Board's determination that the showing of "PD" did not prejudice the veteran. The Board has explained above why it does not believe that this claim had been adjudicated prior to the veteran's November 1994 claim for compensation under the provisions of 38 U.S.C.A. § 1151. It is also important to point out that the Board would not be bound by such determination (i.e., "PD"), as the Board must make its own decisions in matters pertaining to its jurisdiction. In determining whether an earlier effective date is warranted, the Board must consider whether it is reasonable to perceive that the veteran's claim for pension in February 1986 could have been construed as a claim for compensation as well. See 38 C.F.R. § 3.151 (1986) (claim by a veteran for pension may be considered to be a claim for compensation). However, the Board finds that the February 1986 statement, to include a VA Form 21-527, Income-Net Worth and Employment Statement, from the veteran could not have been construed as a claim for compensation benefits under the provisions of 38 U.S.C.A. § 1151. There is nothing in the "four corners" of those two documents that even implied an intent that the veteran was claiming compensation benefits under the provisions of 38 U.S.C.A. § 1151. Specifically, there was no allegation pertaining to his sterility or the surgery he previously underwent in 1974. Rather, the veteran made a general claim that he was seeking pension benefits. Thus, for the above reasons, the Board finds that the preponderance of the evidence is against the finding that the veteran's February 1986 claim for pension benefits was a claim for compensation under the provision of 38 U.S.C.A. § 1151 for sterility, and therefore an effective date back to February 1986 is not warranted. The Board has thoroughly reviewed the evidence of record between 1978 and the November 1994 informal claim for compensation benefits, and, for the reasons stated above, finds that the preponderance of the evidence is against the grant of an effective date earlier than November 16, 1994, for the grant of compensation benefits under the provisions of 38 U.S.C.A. § 1151 for sterility, and there is no doubt to be resolved. See Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an effective date earlier than November 16, 1994, for the grant of compensation under the provisions of 38 U.S.C.A. § 1151 for is denied. ____________________________________________ JEFF MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2