Citation Nr: 1105222	
Decision Date: 02/08/11    Archive Date: 02/18/11

DOCKET NO.  02-08 597	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an effective date earlier than April 8, 1996, for 
the assignment of a thirty (30) percent rating for epididymitis, 
left, with testicular atrophy and hypogonadism.


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran served on active duty from July 1965 to December 
1970.

This case comes before the Board of Veterans' Appeals (Board) on 
appeal from rating decisions of the Houston, Texas, Regional 
Office (RO) of the Department of Veterans Affairs (VA), which 
denied the benefits sought.  

In February 2003, the Veteran testified in person at a Board 
hearing before the undersigned Acting Veterans Law Judge, sitting 
at the RO.  The hearing transcript is of record.  

In July 2003, the issues of service connection for diabetes 
mellitus, to include as secondary to service-connected 
epididymitis, left, with testicular atrophy and hypogonadism, and 
an effective date earlier than April 8, 1996, for the assignment 
of a 30 percent rating for epididymitis, left, with testicular 
atrophy and hypogandism were remanded for further development.  
In January 2006, the Board denied the issues of service 
connection for osteoporosis, service connection for diabetes 
mellitus, claimed to include as secondary to service-connected 
epididymitis, left, with testicular atrophy and hypogonadism, and 
an effective date earlier than April 8, 1996, for the assignment 
of a 30 percent rating for epididymitis, left, with testicular 
atrophy and hypogandism.  The Veteran appealed those issues to 
the U.S. Court of Appeals for Veteran's Claims (Court).  

In an April 2008 Memorandum Decision, the Court upheld the Board 
denial of service connection for osteoporosis but set aside the 
Board's denials of service connection for diabetes mellitus, to 
include as secondary to service-connected epididymitis, left, 
with testicular atrophy and hypogonadism, and an effective date 
earlier than April 8, 1996, for the assignment of a 30 percent 
rating for epididymitis, left, with testicular atrophy and 
hypogonadism.  These issues were remanded to the Board.

In May 2009, the issue of service connection for diabetes 
mellitus, to include as secondary to service-connected 
epididymitis, left, with testicular atrophy and hypogonadism was 
remanded to the RO via the Appeals Management Center (AMC), in 
Washington, DC.  That issue remains in remand status to date.  
The Board also denied an effective date earlier an April 8, 1996, 
for the assignment of a 30 percent rating for epididymitis, left, 
with testicular atrophy and hypogonadism.  The Veteran appealed 
the denial to the Court.  In an Order, dated in July 2010, the 
Court granted a Joint Motion to Remand of the parties, the VA 
Secretary and the Veteran, and remanded the case to the Board for 
readjudication consistent with the Motion. 

The issues of entitlement to special home adaption, entitlement 
to special adaptive housing and whether there was clear and 
unmistakable error in a January 1978 rating decision that reduced 
the evaluation assigned for the service connected ankylosing 
spondiylitis of dorsal and lumbar spine with cervical narrowing 
at the C4-C5 level (currently characterized as rheumatoid 
arthritis of the thoracic and lumbar spine) from 40 percent to 20 
percent effective May 1, 1978, will be the subject of a separate 
decision.  

Please note this appeal has been advanced on the Board's docket 
pursuant to 38 C.F.R. § 20.900(c) (2010).  38 U.S.C.A. 
§ 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's claim for an increased rating for his service-
connected epididymitis, left, with testicular atrophy and 
hypogonadism was received by the RO on March 29, 1995.

2.  The clinical records do not establish that the Veteran met 
the criteria for a higher rating beyond 0 percent for his 
epididymitis, left, with testicular atrophy and hypogonadism 
during the one-year period prior to his March 29, 1995 claim.  


CONCLUSION OF LAW

The criteria for an effective date of March 29, 1995, for the 
grant of a 30 percent rating for epididymitis, left, with 
testicular atrophy and hypogonadism have been met.  38 U.S.C.A. 
§§ 1155, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 
3.321, 3.400, 4.130, Diagnostic Codes 7523, 7524 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Board has considered the provisions of the Veterans Claims 
Assistance Act of 2000.  See, 38 U.S.C.A. §§ 5103, 5103A (West 
2002).  The VCAA includes an enhanced duty on the part of VA to 
notify a claimant as to the information and evidence necessary to 
substantiate a claim for VA benefits.  The VCAA also redefines 
the obligations of VA with respect to its statutory duty to 
assist claimants in the development of their claims.

The Veteran was provided a VCAA notice regarding his appeal of 
the effective date assigned for the grant of an increased rating 
for his epididymitis, left, with testicular atrophy and 
hypogonadism n an April 2004 letter.  Nevertheless, the Court has 
held that failure to comply with the notice requirement of the 
VCAA is not prejudicial to the Veteran if, based on the facts 
alleged, no entitlement exists.  See Valiao v. Principi, 17 Vet. 
App. 229, 232 (2003).  Moreover, the issue of entitlement to an 
earlier effective date is dependent on finding that the Veteran 
submitted a formal or informal claim for the benefit prior to the 
date of the claim, or that there was evidence dated or received 
within one year of the date of claim that showed an increase in 
the disability.  The evidence to be considered in making that 
determination is limited to documents received by VA prior to 
that date.  

The Veteran and his representative, an attorney in this case, 
have been accorded the opportunity to present evidence and 
argument, and have done so.  The facts alleged as proving his 
claim pertain to records which are already in the file.  The 
Veteran has not indicated the existence of any other evidence not 
already contained in the claims file that might be relevant to 
his appeal.  

Thus, the Board finds that all relevant data has been obtained 
for determining the merits of the Veteran's appeal and no 
reasonable possibility exists that any further notice or 
assistance would aid him in substantiating his appeal.  See 38 
U.S.C.A. § 5103A West 2002); Wensch v. Principi, 15 Vet. App. 
362, 368 (2001); 38 C.F.R. § 3.159(c) (2010).  Moreover, the 
Veteran has actual notice of what is needed to substantiate the 
claim as evidenced by the multiple arguments in this case.  
Consequently, any failure to provide VCAA notice is not shown to 
have affected the essential fairness of the adjudication or to 
cause injury to the claimant.  See Sanders, supra.  Thus, any 
such error is harmless and does not prohibit consideration of 
this matter on the merits.  See Conway, supra; Dingess, supra; 
see also, ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 
1998).


Earlier Effective Date

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 award based on an 
original claim for service connection "shall be fixed in 
accordance with the facts found, but shall not be earlier than 
the date of receipt of application therefore."  38 U.S.C.A. § 
5110(a) (West 2002).

The applicable effective date statute and regulations provide 
that the proper effective date for an increased rating is the 
earliest date as of which it is factually ascertainable that an 
increase in disability had occurred, if a claim is received 
within one year from such date; otherwise, the effective date is 
the date of receipt of claim for increased rating.  38 U.S.C.A. § 
5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2010).  

A specific claim in the form prescribed by VA must be filed in 
order for benefits to be paid to any individual under the laws 
administered by VA.  38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. 
§ 3.151(a) (2010).  Any communication or action, indicating an 
intent to apply for one or more benefits under the laws 
administered by VA, 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.  38 C.F.R. § 3.155 (2010).

In a March 1971 rating decision, the Veteran was granted service 
connection and a noncompensable rating for epididymitis, left.  
The Veteran did not appeal this decision and it became final.  
See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 
(2010).   The Veteran filed a claim for an increased rating for 
the epididymitis disability that was received by the RO in April 
1988.  At that time, he submitted a January 1988 private medical 
report that indicated that the Veteran's left testicle was 
essentially absent and the right testicle was somewhat atrophied.  
In a January 1989 rating decision, the RO denied the claim for an 
increased rating because the Veteran failed to show for a 
scheduled VA examination and the evidence was insufficient to 
evaluate the residuals of left epididymitis.  The Veteran was 
informed of the determination under cover letter dated February 
13, 1989.  

On March 3, 1989, the Veteran's representative submitted 
duplicate medical records.  In a March 29, 1989 letter, the 
Veteran was informed that no change was warranted in the prior 
decision.  The Veteran did not appeal either of these 
determinations.  Hence, they are final.  See 38 U.S.C.A. § 7105 
(West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2010).

In March 1995, the Veteran filed a claim for an increased rating 
for his spine disability, service connection for a heart 
condition, and compensation based on "loss of use of creative 
organ."  In April 1996, he submitted a claim for an increase in 
his service-connected urinary condition.  In a February 1997 
rating decision, the RO denied service connection for loss of use 
of a creative organ.

Documents show that the Veteran contacted his Congressman and in 
a note to his Congressman, received by VA in August 1997.  The 
Veteran stated that he had "on many occasions tried to get the VA 
to examine and evaluate the loss of a reproductive organ.  He 
reported that the service-connected rating should be evaluated 
from the original rating of 0 percent.  In an April 1998 rating 
decision, the RO granted an increased rating to 20 percent for 
epididymitis, left, with testicular atrophy and hypogonadism, 
effective April 8, 1996 based on medical evidence that showed 
atrophy of both testicles.  Hence, a 20 percent rating was 
warranted pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7523.  
The RO also granted entitlement to special monthly compensation 
based on the loss of use of a creative organ, effective April 8, 
1996.

The Veteran filed a notice of disagreement in March 1999.  In a 
June 1999 rating decision, the RO found clear and unmistakable 
error in the January 1989 rating decision that failed to grant 
entitlement to special monthly compensation based on the loss of 
use of a creative organ and assigned an effective date of 
January 29, 1988 for that benefit.  It was noted that a medical 
record from Dr. Hicks showed that the left testicle was 
essentially absent.  The right testicle was somewhat atrophic, 
but present at that time.

In a November 2000 statement, the Veteran asserted that he had 
been rated 20% for his testis removal and he believed there was 
an error.  He requested consideration of a 30% rating pursuant to 
Diagnostic Code 7524.  He also requested consideration for retro 
benefits that he may be entitled to.

In an April 2001 rating decision, the RO found that there was no 
clear and unmistakable error in the April 1998 decision that 
evaluated the Veteran's left epididymitis with testicle atrophy 
and hypogonadism as 20 percent disabling because the evidence did 
not show the absence or removal of both testicles as required by 
38 C.F.R. § 4.115b, Diagnostic Code 7524.  The Veteran filed a 
notice of disagreement with this determination.  In a January 
2002 rating decision, the RO found that there was clear and 
unmistakable error in the April 1998 rating decision and granted 
the Veteran a 30 percent rating for the disability, effective 
April 8, 1996.  The RO found that the medical evidence showed 
that the left testicle was essentially absent, and serum testing 
completed in July 1997 revealed an essentially non-functional 
right testicle.  Hence, the 30 percent rating was warranted under 
Diagnostic Code 7524. 

In a May 2002 statement, the Veteran asserted that he should be 
granted an effective date earlier than April 8, 1996, for the 
assignment of a 30 percent rating for epididymitis, left, with 
testicular atrophy and hypogandism.  In an August 2002 
determination, the RO denied the claim. T he Veteran filed a 
notice of disagreement and he was provided with a Statement of 
the Case on the issue in September 2002. He filed a substantive 
appeal later that month.

In a January 2006 decision, and again in May 2009, the Board 
denied the Veteran's claim for an effective date earlier than 
April 8, 1996 for the grant of a 30 percent rating for the 
service-connected epididymitis, left, with testicular atrophy and 
hypogonadism.  

The Date of the Claim

As noted in the Court Joint Motion, and it was agreed to by the 
parties that the evidence supports a finding that the March 1995 
claim for loss of use of a creative organ included a claim for an 
increased rating for the service-connected epididymitis.  In that 
regard, the Court cited Clemons v. Shinseki, 23 Vet. App. 1 
(2009).  It was pointed out that in Clemons, the Court held that 
the RO should construe a claim based on reasonable expectations 
of the non-expert, self-represented claimant and the evidence 
developed in processing that claim.  Thus, the Court stated that 
in light of the fact that the Veteran was pro se and that the 
increased rating assigned for the epididymitis was based upon the 
absence of the left testicle and atrophy of the right testicle, 
the recognition of which the Veteran was seeking by claiming 
benefits for loss of use of a creative organ, the March 1995 
claim encompassed a claim for an increased rating for the 
service-connected epididymitis.  The Court also referred to 
Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007).  

Thus, the date of the Veteran's claim for an increased evaluation 
is March 29, 1995.  As noted above, the applicable effective date 
statute and regulations provide that the proper effective date 
for an increased rating is the earliest date as of which it is 
factually ascertainable that an increase in disability had 
occurred, if a claim is received within one year from such date; 
otherwise, the effective date is the date of receipt of claim for 
increased rating.  38 U.S.C.A. § 5110(b)(2) (West 2002); 
38 C.F.R. § 3.400(o)(2) (2010).  

Earliest Date that an Increase Occurred

The evidence shows that the record does not contain evidence 
showing an increase in the Veteran's disorder within a year of 
the date of the claim.  While he was initially granted a 20 
percent increase, under DC 7523, he was subsequently granted a 30 
percent increase under DC 7523-7524, which encompassed the 
previous 20 percent assignment.  Under DC 7523, a zero percent 
rating is warranted for complete atrophy of only one testicle.  A 
20 percent rating is warranted for complete atrophy of both 
testicles.  38 C.F.R. § 4.115b, DC 7523.  This is the highest 
rating assignable under that code.  Under DC 7524, a 
noncompensable rating is assigned for removal of one testicle and 
a maximum 30 percent rating for removal of both testes.  Id.  

VA treatment records dated during the one-year period prior to 
the Veteran's March 1995 claim for an increased rating do not 
show that he met the criteria for a 30 percent rating.  

Private records received by the RO in July 1988 and again in 
March 1989 show that the Veteran was noted to have left testicle 
was essentially absent and the right testicle was somewhat 
atrophic, but present in January 1988.  He reported failure with 
erection on one occasion but that so far it was quite 
satisfactory.  This evidence was first submitted seven years 
prior to the claim for benefits and relates to findings during 
that year.  Additionally the VA outpatient treatment records 
dated in 1993 and 1994 do not reflect any treatment for 
genitourinary complaints.  VA records show that in July 1997, 
serum testosterone level was 1.2, and the examiner stated that 
this was below normal, and a very low level.  In September 1997, 
the Veteran was examined by VA and upon clinical evaluation, it 
was noted that he had complete atrophy of the left testicle and 
that the right testicle had become much smaller.  

The Veteran's claim for an increased rating for his service-
connected epididymitis disability was received in March 1995.  
There is no medical evidence dated or received in the one-year 
period prior to March 1995 pertaining to the service-connected 
epididymitis and showing that both testicles were completely 
atrophied (DC 7523) or either absent or completely non-
functioning (DC 7524).  Thus, neither the criteria for a 20 
percent rating or a 30 percent rating were shown.   Therefore, it 
was not factually ascertainable during the one-year period prior 
to the Veteran's claim that an increase in disability had 
occurred.  Consequently, under the facts presented here, and 
pursuant to the effective date laws and regulations outlined 
above, the March 29, 1995 the date of the Veteran's claim for an 
increased rating, is the earliest effective date that may be 
assigned for the grant of increased compensation.  See 38 C.F.R. 
§ 3.400(o)(2) (earliest date that it is factually ascertainable 
that an increase in disability had occurred if claim is received 
within 1 year from such date otherwise, date of receipt of 
claim.)  

It is noted that the RO adjudicated the issue of clear and 
unmistakable error regarding the failure to grant special monthly 
compensation based on the loss of use of a creative organ in a 
June 1999 rating decision.  It found clear and unmistakable error 
in a January 1989 decision regarding special monthly 
compensation.  Special monthly compensation was granted with an 
effective date of January 29, 1988.  However, to the extent that 
the Veteran is arguing that the finding is pertinent in this 
claim, while the special monthly compensation claim has been 
construed as including a claim for an increased rating, special 
monthly compensation based on the loss of use of a creative organ 
is a separate and distinct issue.  The RO did not find clear and 
unmistakable error in the January 1989 decision which denied a 
compensable evaluation for atrophy of the testicles.  The 
compensable evaluation was denied and the Veteran was provided 
notice of this in a February 1989 letter.  On March 3, 1989, the 
Veteran's representative submitted duplicate medical records.  In 
a March 29, 1989 letter, the Veteran was informed that no change 
was warranted in the prior decision.  The Veteran did not appeal 
either of these determinations.  Hence, they are final.  38 
U.S.C.A. § 7105 (West 2002).  The Court has clearly held that 
there is no basis in VA law for a freestanding earlier effective 
date claim in matters addressed in a final decision.  If a 
claimant wishes to obtain an effective date earlier than that 
assigned in a RO decision, the claimant must file a timely appeal 
as to that decision.  Otherwise, the decision becomes final and 
the only basis for challenging the effective date is a motion to 
revise the decision based on clear and unmistakable error.  See 
Rudd v.  Nicholson, 20 Vet. App. 296 (2006).  A claim regarding 
the issue of whether there was clear and unmistakable error in 
the January 1989 rating decision regarding the evaluation 
assigned for the epididymitis disability has not been submitted 
by the Veteran or adjudicated by the RO and is not currently 
before the Board.  See Rudd, supra.   

Therefore, the Board concludes that an effective date of March 
29, 1995 is warranted for the assignment of a 30 percent rating 
for epididymitis, left, with testicular atrophy and hypogandism.  


ORDER

An effective date of March 29, 1995 for the assignment of a 30 
percent rating for epididymitis, left, with testicular atrophy 
and hypogandism is granted subject to the rules and regulations 
governing the payment of VA monetary benefits.   



____________________________________________
SUSAN J. JANEC
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs