Citation Nr: 0423933 Decision Date: 08/27/04 Archive Date: 09/01/04 DOCKET NO. 99-08 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date earlier than July 18, 1997, for the award of special monthly compensation (SMC) for loss of use of a creative organ. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from May 1956 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) from an April 1998 rating decision issued in May 1998 by the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, awarded SMC for loss of use of a creative organ effective from July 18, 1997. The veteran testified at a personal hearing before a hearing officer and at a Board videoconference hearing before the undersigned Veterans Law Judge in Las Vegas, Nevada, in August 1999 and December 2000, respectively. Copies of the transcripts are associated with the claims file. At the videoconference hearing, the veteran withdrew his appeals with regard to all other pending issues except for the issue described above. 38 C.F.R. § 20.204 (2003). In February 2001, the Board remanded the case to the RO to adjudicate the veteran's intertwined claim of clear and unmistakable error (CUE) in the rating actions of December 1976 and May 1977 in failing to award SMC for loss of use of a creative organ. In a May 2002 rating decision, the RO determined that CUE had not been made in those rating actions and no revision was warranted for failure to address the issue of SMC due to loss of use of a creative organ. In compliance with the Board's remand, the RO notified the veteran of that decision and his appellate rights. As the veteran did not file a notice of disagreement (NOD) within one year of notification, the May 2002 rating decision became final. 38 C.F.R. § 20.1103 (2003). In February 2001, the Board remanded the case to the RO. The case now is before the Board for further appellate consideration. FINDINGS OF FACT 1. On November 8, 1976, the RO received the veteran's original claim for service connection for residuals of transurethral resections of the prostate (TURP), which reasonably raised an original claim for SMC for loss of use of a creative organ. 2. An August 1971 semen analysis revealed motility of 10 to 15 percent, abnormal forms of 5 to 10 percent and sperm count of 1 million per milliliter following a 1964 TURP; subsequent service medical records show the veteran's prostate was removed during a September 1971 TURP and that the veteran was informed that the operation usually resulted in functional sterility, that is, loss of use of a creative organ. CONCLUSION OF LAW The criteria for an effective date of November 1, 1976, for the grant of SMC based on the loss of use of a creative organ have been met. 38 U.S.C.A. § 5110 (West 2002);38 C.F.R. §§ 3.105(a), 3.350, 3.400 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (Nov. 9, 2000), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The VCAA eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. In August 2001, VA issued regulations to implement the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003)). The amendments became effective on November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which became effective August 29, 2001. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case with respect to the issue on appeal, the Board concludes that the VCAA does not preclude adjudication of the appellant's claim. This is so because the Board is taking action favorable to the appellant in granting the appellant's claim for an effective of November 1, 1976, the day after discharge from service, for the grant of SMC based on the loss of use of a creative organ, and as such this decision poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). A. Pertinent Criteria The relevant laws and regulations governing this particular fact pattern have remained in force without substantial alteration throughout the entire time period at issue. See 38 C.F.R. § 3.350 (1976, 2003). A "claim" is defined in the VA regulations as "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) (1976, 2003). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (1976, 2003). A pending claim is defined as an application, formal or informal, which has not been finally adjudicated. A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. A reopened claim is any application for benefits received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (1976, 2003). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). Benefits are generally awarded based on the "date of receipt" of the claim. 38 C.F.R. §§ 3.1(r), 3.400 (2003). The effective date of a grant of disability compensation based on a grant of service connection, including SMC, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). B. Analysis Service medical records from the veteran's twenty years of service show continuing treatment for prostatitis beginning in 1963 with the veteran undergoing two TURPs, one in 1964 and the last in September 1971. Prior to the last TURP, an August 1971 semen analysis revealed motility of 10 to 15 percent, abnormal forms of 5 to 10 percent and sperm count of 1 million per milliliter. Subsequent service medical records show that the veteran's prostate was removed during a September 1971 TURP and that the veteran was informed that the operation usually resulted in functional sterility. On November 8, 1976, the veteran submitted a VA Form 21-526e, Veteran's Application for Compensation or Pension at Separation from Service, claiming service connection for residuals of a TURP performed in September 1971. In a December 1976 rating decision, the RO, in pertinent part, grant service connection for residuals of transurethral resection of the prostate and assigned an initial 20 percent rating, effective the day after service discharge, November 1, 1976. In February 1977, the veteran filed an NOD with the assigned rating because it was based on a review of his service medical records; he asked for a VA examination. At an April 1977 VA examination, the veteran reported that he was unable to father children due to chronic prostatitis caused by parachute jumps between 1958 and 1960 and cross- country Jeep and 3/4 -ton truck travel; that he had had recurrent prostate gland infections requiring repetitive TURPs in 1964 and 1971, which necessitated prolonged recuperation and convalescence; and that he still had occasional swelling of the left testicle, hematuria and dysuria. There was some pain noted on palpation. The diagnoses included residuals of prostatitis with subsequent two TURPs, considerably symptomatic. In a May 1977 rating decision, the RO confirmed the initial 20 percent rating for residuals of transurethral resection of the prostate. A September 1995 VA Agent Orange examination report included a diagnosis of benign prostatitis hypertrophy, noting prostate +1 enlarged, post TURP. On July 18, 1997, the RO received the veteran's claim for loss of a creative organ (that is, retrograde ejaculation). At a November 1997 VA examination, the veteran reported that he had his first TURP in January 1964 and was hospitalized for two to three weeks due to a postoperative infection. He had his second TURP in September 1971 and again was hospitalized for a longer period of time due to a postoperative infection. The veteran stated that he was impotent following surgery and was still impotent and was not able to have children because of the TURPs. He also indicated that he was unable to get an erection or ejaculate and that he no longer had intercourse. The diagnosis was status post TURP times 2, residuals. The examiner stated that he had no medical records to review. In an April 1998 rating decision, issued in May 1998, the RO, in pertinent part, granted SMC for loss of use of a creative organ from July 18, 1997, the date of claim, noting that the veteran had reported impotence since his initial surgery and an inability to participate in sexual intercourse. The RO added that, while there was no evidence of testing for impotence and resolving all reasonable doubt in the veteran's favor, the nature of the surgery and subsequent complaints met the requirements for entitlement. The veteran filed an NOD with respect to the assigned effective date. At RO and Board videoconference hearings held in Las Vegas, Nevada, the veteran testified that he had never fathered a child although he had been married since 1968; that before the September 1971 TURP, a semen count was found to be very, very low, extremely low to the degree that conception would be a practical impossibility; that his sperm was irregular in character such that, if conception had been at all possible, it was questionable whether birth defects might not be a problem; and that an inability to conceive had always been a residual of his TURPs. The veteran added that he had thought that VA had addressed this inability in the initial 20 percent rating and that it was not until 1997 that he discovered that there was SMC that should have been paid since November 1, 1976. Since he had asked for compensation for his TURP residuals, VA should have also considered his original claim as a claim for SMC for loss of use of a creative organ since the veteran has been sterile since his two TURPs. Based on the foregoing and resolving the benefit of the doubt in the veteran's favor, the Board finds that an effective date of November 1, 1976, for the grant of SMC for loss of use of a creative organ, is warranted. The Board finds that service medical records from 1971 and 1972 reflect functional sterility, that is, loss of use of a creative organ due to the veteran's chronic prostatitis and surgeries (TURPs) performed in 1964 and 1971. See 38 C.F.R. § 3.350(a)(1)(c)(ii) (1976, 2003). Thus, service medical department records show date of entitlement was prior to the veteran's discharge from service. The Board also finds that a formal service- connection/compensation claim received by the RO on November 8, 1976, for residuals of TURPs underwent by the veteran in service, should be construed as the date of receipt of a claim for SMC for loss of use of a creative organ. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 1998) (holding that the VA should give a sympathetic reading to the veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). This is particularly so in light of the veteran's report at his April 1977 VA examination that he could not father any children after his in-service TURPs and service medical records confirming this. The veteran was discharged from service on October 31, 1976. Thus, as an original claim filed within one year of discharge from service, the earliest date for which entitlement to service connection/SMC could be granted is the day following service discharge, or November 1, 1976. See 38 C.F.R. § 3.400(b)(2). An effective date earlier than November 1, 1976, the day following service discharge, is not warranted, since the veteran was on active duty. See 38 C.F.R. § 3.400. Moreover, the veteran does not contend that an effective date prior to November 1, 1976 should be granted. Therefore, an effective date of November 1, 1976 for the grant of SMC for loss of a creative organ, is awarded. ORDER An effective date of November 1, 1976, for the grant of SMC for loss of use of a creative organ, is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ A. BRYANT 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