Citation Nr: 1210744	
Decision Date: 03/23/12    Archive Date: 03/30/12

DOCKET NO.  10-37 354	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for erectile dysfunction. 

2.  Entitlement to special monthly compensation (SMC) for loss of use of a creative organ.  

3.  Entitlement to an effective date earlier than January 11, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Stephanie L. Caucutt, Counsel


INTRODUCTION

The Veteran served on active duty from January 1952 to October 1955.

This appeal to the Board of Veterans' Appeals (Board) arises from July 2008 and October 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas.  In the July 2008 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 70 percent, effective January 11, 2007.  In July 2008, the Veteran filed a notice of disagreement (NOD) with the effective date assigned for that award.  

In the October 2008 rating decision, the RO denied entitlement to SMC based on loss of use of a creative organ (for erectile dysfunction/impotence).  It also denied entitlement to an earlier effective date for the award of service connection for PTSD.  Thereafter, in October 2008, the Veteran filed a NOD with both denials and, in August 2010, the RO issued a statement of the case regarding these issues.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010.  

In August 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO.  A transcript of that hearing is associated with the claims file.  

The Board notes that the issue of entitlement to service connection for erectile dysfunction has not been adjudicated by the RO or appealed to the Board.  However, based on the evidence of record, the Board finds that the issue of service connection for erectile dysfunction is intertwined with the issue of entitlement to SMC based on loss of use of a creative organ.  The Board has considered referring the issue of entitlement to service connection for erectile dysfunction to the RO for appropriate consideration and adjudication.  However, as the Board is granting this claim, and the claim is intertwined with the issue of entitlement to SMC based on loss of use of a creative organ, the Board finds it to be in the best interest of the Veteran to adjudicate these claims together in this determination, as done below.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's disability rating for prostatitis contemplates a voiding dysfunction with such symptoms as urinary frequency and nocturia.  

2.  Competent medical evidence indicates that the Veteran takes Tamsulosin and Finasteride for treatment of urinary frequency and nocturia; such evidence also indicates that the Veteran's current erectile dysfunction is as likely as not related to the use of these medications.  

3.  Resolving all reasonable doubt in the Veteran's favor, the competent evidence of record indicates that his current erectile dysfunction is causally related to service-connected prostatitis.  

4.  Competent evidence indicates that the Veteran's erectile dysfunction is characterized by an inability to achieve any erection.  

5.  An unappealed December 1955 rating decision denied service connection for an acquired psychiatric disorder, to include nervousness.

6.  No communication or evidence was received prior to January 11, 2007, which could be interpreted as an informal or formal claim to reopen the Veteran's previously disallowed claim of entitlement to service connection for an acquired psychiatric disorder.  

CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, service connection for erectile dysfunction as secondary to prostatitis is warranted.  38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2011).

2.  The criteria for entitlement to SMC based on loss of use of a creative organ have been met.  38 U.S.C.A. § 1114(k) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.350(a) (2011).

3.  The criteria for an effective dated prior to January 11, 2007, for service connection for PTSD have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2011).  

In this case, with regard to the claims for service connection for erectile dysfunction and SMC based on loss of use of a creative organ, the Board is granting in full the benefits sought on appeal.  As such, the Board finds that any error related to the VCAA on these claims is moot and will not be further discussed as it pertains to these claims.  See Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

With respect to the remaining claim on appeal, the issue is the propriety of the effective date assigned for the original grant of service connection for PTSD.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003).  Here, the record reflects that letters sent to the Veteran in February 2007 and September 2008 notified him of what information and evidence is necessary to substantiate a claim for an earlier effective date, which information and evidence VA will obtain, and which information and evidence he is expected to provide.  The Board is therefore satisfied that the Veteran was provided appropriate notice as well as a meaningful opportunity to participate in the adjudicatory process, and that there is no prejudice in the Board proceeding with a decision at this time.  

With regard to VA's duty to assist, it is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points of time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  Nevertheless, the Board has carefully reviewed the Veteran's service treatment records, reports of post-service private and VA treatment and examination, and the Veteran's statements in support of his claim, and concludes that there has been no identification of further available evidence not already of record that would be relevant to the current claim on appeal. Thus, VA's duty to assist has been met.

II. Analysis

A. Service Connection

As discussed above, the Veteran has not specifically submitted a claim for service connection for erectile dysfunction.  Nevertheless, the Board has taken jurisdiction of this claim as it is reasonably interpreted as a "sub-claim" of his claim for SMC based on loss of use of a creative organ.  

Pertinent to this claim, VA law and regulations provide that service connection may be assigned for a disability when the evidence demonstrates that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury.  38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2011).  Additionally, service connection is warranted for a disability which has been chronically worsened by a service-connected disease or injury.  Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  

The Veteran has asserted throughout this appeal that his erectile dysfunction is directly related to service-connected prostatitis.  Specifically, he contends that the medications he takes for treatment of his service-connected disability - Tamsulosin and Finasteride - have resulted in erectile dysfunction.  

A review of VA treatment records reveals a notation of "impotence" as early as April 2000.  More recently, an October 2008 print-out of the Veteran's "active problems" indicates continued erectile dysfunction.  There is no indication in contemporaneous records as to the etiology of this disorder.  

In August 2008, the Veteran underwent a genitourinary examination for the specific purpose of examining the nature and etiology of his claimed erectile dysfunction.  The examiner noted that, per VA treatment records, erectile dysfunction was added to the Veteran's active problem list in 2001.  As for the etiology of this disorder, the examiner stated that the "most likely etiology" is "medication."  She further explained in her narrative opinion that two of the Veteran's medications - Finasteride and Metoprolol - can contribute to erectile dysfunction."  

Noting the Veteran's lay assertions that he takes Finasteride for treatment of service-connected prostatitis, the August 2008 examiner stated that the Veteran is, in fact, on no medications for prostatitis.  Rather, she pointed out that Finasteride (and Tamsulosin) are used to treat the Veteran's benign prostatitic hypertrophy (BPH), which is a "separate condition" that results in an enlarged prostate and is a "natural consequence of aging."  Hence, given that the Veteran has several identified factors which could contribute to erectile dysfunction (including the use of Finasteride), and seeing that such factors are not related to prostatitis, it was the August 2008 examiner's opinion that "it would be mere speculation to state the Veteran's erectile dysfunction is caused by . . . prostatitis."  

The Board acknowledges that the Veteran has not been awarded service connection for BPH.  However, a review of the most recent rating decision regarding his service-connected prostatitis, dated in December 2006, reveals that this disability picture contemplates symptoms of a voiding dysfunction such as urinary frequency and nocturia.  According to the U.S. National Library of Medicine, Finasteride (also known as Proscar) and Tamsulosin are used to treat symptoms of an enlarged prostate such as frequent and difficult urination.  See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001025/ and http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001028/ (both last revised January 15, 2012).  

When a veteran has both service-connected and nonservice-connected disabilities, the VA must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Here, the Veteran has two prostate conditions, one service-connected (i.e., prostatitis) and one nonservice-connected (i.e., BPH), which both result in voiding symptoms such as urinary frequency and nocturia.  Given that it does not appear VA has made any attempt to distinguish those voiding symptoms due to prostatitis from those due to BPH, the Veteran's service-connected prostatitis must include any voiding symptoms due to BPH.  See id.  Similarly, any treatment(s) used to manage urinary symptoms for which the Veteran is service-connected, such as Finasteride and Tamsulosin, must be considered as part of his service-connected disability picture.  

As noted above, the August 2008 VA examiner opined that the most likely etiology of the Veteran's erectile dysfunction is a medication, either Finasteride or Metoprolol.  Additionally, the record contains an August 2011 statement from the Veteran's treating VA physician that he is currently taking Tamsulosin to treat BPH and that such medication is known to decrease sexual libido.  Finally, the Veteran has submitted medication fact sheets for both of these drugs which indicate decreased sexual libido and erectile problems to be possible side effects of these drugs.  

It is the Board's finding that such evidence, collectively, indicates that it is at least as likely as not that the Veteran's current erectile dysfunction is causally related to his use of Finasteride and Tamsulosin, which are used to treat urinary symptoms associated with his service-connected prostatitis.  Therefore, resolving any reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for erectile dysfunction as secondary to prostatitis are met.  See 38 C.F.R. § 3.102 (2011);  See also 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

B. Special Monthly Compensation

VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs.  38 U.S.C.A. § 1114 (k) (West 2002 & Supp. 2011).  Loss of use of one testicle is established when (a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or (b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or (c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa.  38 C.F.R. § 3.350(a)(1)(i) (2011).

The Veteran's contemporaneous VA medical records demonstrate that erectile dysfunction is listed among his active medical problems.  At a VA genitourinary examination in August 2008, the Veteran described his problem as an inability to achieve any erection.  He indicated that he was unable to take medication to treat this problem due to his heart disease; he was issued a vacuum pump, but it was ineffective.  

As noted above, the Veteran has been granted service connection for erectile dysfunction.  Therefore, considering the foregoing evidence that the Veteran is unable to achieve an erection, and in light of the grant of entitlement to service connection for erectile dysfunction, the Board finds that entitlement to SMC based on loss of use of a creative organ (i.e., penis) is warranted.  See 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a).

C. Earlier Effective Date for PTSD

The record reflects that the Veteran's active military service ended in October 1955.  In November 1955, the RO received a VA Form 21-526, Veteran's Application for Compensation or Pension, in which the Veteran indicated that he was seeking compensation for "nervousness" that first began in November 1954.  A December 1955 RO rating decision denied entitlement to service connection for an acquired psychiatric disability (claimed as nervousness), as well as service connection for a passive-aggressive personality.  In its denial, the RO noted that there was no evidence of a diagnosed acquired psychiatric disability and service connection for a personality disorder was prohibited as a matter of law.  

The Veteran was notified of the December 1955 rating decision by letter dated in January 1956, but he did not appeal this decision.  Thus, it became final.  38 U.S.C.A. § 5107; 38 C.F.R. § 20.302, 20.1103.  On January 11, 2007, the Veteran's authorized representative submitted a statement indicating an intent to seek "service connection for PTSD."  The Veteran was subsequently awarded service connection for PTSD by RO rating decision dated in July 2008.  An effective date of January 11, 2007, was assigned on the basis that a communication received on same date reflected the earliest evidence of a pending claim to reopen his previously disallowed claim.  

Evident from the Veteran's lay statements and August 2011 testimony, it is his contention that he be awarded an effective date earlier than January 11, 2007, because although he did not file for PTSD until 2007, his claim for "nervousness" in 1955 was essentially one for PTSD.  In other words, it is his belief that given PTSD had its onset during service, and seeing as he filed a claim shortly after service, it is proper that service connection be awarded back to the date of his separation from service.  

Generally, the effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2011).  On a claim reopened after final disallowance, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2).

In this case, the Veteran does not dispute that his first claim for service connection for PTSD was in January 2011.  In fact, he confirmed this fact at the August 2011 Board hearing.  Furthermore, he does not dispute that he did not appeal the November 1955 RO rating decision which denied service connection for an acquired psychiatric disability (claimed as nervousness).  On the basis of these undisputed facts, it would appear that he is not entitled to an effective date prior to the date of his claim to reopen - January 11, 2007.  See id.  Nevertheless, the Board has reviewed the claims file for any indication that the Veteran had a pending claim for acquired psychiatric disability, to include PTSD, prior to January 11, 2007.  See Norris v. West, 12 Vet. App. 413, 417 (1999).  See also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a disability claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record).  

Relevant legal authority provides that a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished 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) (2011).  Regardless of whether a claim is formal or informal, it must, at a minimum, identify the benefit sought and express some intent to seek it.  See 38 C.F.R. § 3.155(a) (2011); see also Brannon v. West, 12 Vet. App. 32, 34 (1998).  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).

Between the December 1955 RO denial of service connection for an acquired psychiatric disability and the January 11, 2007, request to reopen, the Board finds the Veteran did not submit a formal or informal request to reopen this claim.  The relevant documents for this time period include a number of informal claims submitted by the Veteran, including requests for reevaluation of service-connected prostatitis and requests for service connection for back, lung, heart, kidney, and adrenal gland disorders.  None of these documents, however, reflect any intent on the part of the Veteran to reopen his claim of service connection for an acquired psychiatric disability, to include PTSD, as they contain no mention of psychiatric problems.  

In addition to the various claims submitted by the Veteran, the record contains VA hospital summaries which show treatment for passive dependent personality in December 1959 and depressive reaction, moderate, acute, from September to November 1960.  There is also a letter from the Veteran's mother, submitted via congressional correspondence in June 1957, documenting a number of physical and emotional symptoms exhibited by the Veteran since his return from service, including "his nerves."  As discussed in a May 2008 VA PTSD examination, such medical and lay evidence is suggestive of PTSD and was used to support a finding that the Veteran has PTSD related to his military service.  

A VA report of examination or hospitalization or evidence from a private physician or layman may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157 (2011).  However, the mere presence of medical evidence of a condition does not establish an intent on the part of a veteran to seek service connection for the disability.  Brannon v. West, 12 Vet. App. 32, 35 (1998).  Here, both VA hospital summaries indicate that the Veteran was initially hospitalized for complaints related to prostatitis and that his psychiatric problems were subsequently discovered.  There was no mention of psychological problems related to service events; rather, both the Veteran's passive dependent personality and depressive reaction were attributed to marital/work difficulties.  

The Board finds that neither of these medical records may constitute an informal claim for purposes of reopening the Veteran's previously denied claim for service connection for an acquired psychiatric disorder.  In this regard, neither VA hospital summary contains evidence suggestive of an acquired psychiatric disability related to service.  Additionally, there is no statement accompanying either medical record which indicates an intent to file for compensation benefits for a psychiatric disorder(s) noted in these records.  Rather, the only statement relating to either medical record is a December 1959 letter from The American Red Cross advising that the Veteran was hospitalized for his "service[-]connected disability," and that a report of such hospitalization should be "requested for rating purpose."  Given that the Veteran's initial complaints related to a service-connected disability - prostatitis - such statement was appropriately evaluated as a claim for increased rating.  

With regard to the June 1957 letter, the Board notes that while it may accept an informal claim from a Member of Congress or some person acting as next friend of a claimant, such informal claim must still indicate an intent to seek benefit(s) and must identify the benefit(s) sought.  See 38 C.F.R. § 3.155 (2011).  Review of this letter reveals that the Veteran's mother appears to be seeking either a pension or medical treatment for the Veteran, but not disability compensation benefits, as evidenced by her statements that he previously filed for pension but was denied and that she would be "greatful [sic] . . . if somethings [sic] done to emprove [sic] his helth [sic]."  Even under the most liberal reading, the Board finds no clear intent on the part of the Veteran's mother to file a disability compensation claim on behalf of her son.  See Norris, 12 Vet. App. at 417.  

The Board is sympathetic to the Veteran's claim for an earlier effective date for the grant of service connection for PTSD.  However, absent evidence that he submitted a formal or informal request of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, prior to January 11, 2007, the effective date for this award cannot be earlier than the date of receipt of his request to reopen his previously denied claim on same date.  38 C.F.R. § 3.400.  

Finally, the Board acknowledges that an earlier effective date might be available if VA were to vitiate the finality of the December 1955 RO rating decision.  See 38 C.F.R. § 3.105(a) (2011).  Specifically, if VA were to find clear and unmistakable error (CUE) in the December 1955 rating decision denying service connection for an acquired psychiatric disability, such decision would be reversed and the adjudicative decision which constitutes a reversal of this decision would have the same effect as if the corrected decision had been made on the date of the reversed decision.  Id.  Unfortunately, the Veteran here has not raised an assertion of CUE in the December 1955 rating decision.  The Board notes that the current decision does not prevent him from raising a future CUE claim, if he should so desire, but he has not done so at this time.  Thus, in the absence of a current and specific CUE claim, CUE cannot be a basis of the earlier effective date of award in the claim currently before the Board.  38 C.F.R. § 3.105; see Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom. Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (claim of CUE must be pled with specificity).

Accordingly, the Board finds no basis in the law or facts in this case for an effective date for service connection for PTSD earlier than January 11, 2007.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  In reaching this conclusion, the benefit of the doubt doctrine was considered.  However, as a preponderance of the evidence is against this claim this doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).








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ORDER


Service connection for erectile dysfunction is granted.

SMC for loss of use of a creative organ is granted.

An effective date earlier than January 11, 2007, for the award of service connection for PTSD is denied.



____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs