Citation Nr: 1306642 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-20 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for dysuria and urinary frequency. 2. Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for enteritis. 3. Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for erectile dysfunction. 4. Entitlement to an effective date earlier than March 3, 2008 for the award of special monthly compensation (SMC) based on loss of use of a creative organ. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1943 to December 1945. These matters come before the Board of Veterans' Appeals (Board) from August and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In those decisions, the RO granted entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 (West 2002) for dysuria and urinary frequency, enteritis, and erectile dysfunction (claimed as residuals of radiation treatment for prostate cancer) and granted entitlement to SMC based on loss of use of a creative organ, all effective March 3, 2008. The RO in Winston-Salem, North Carolina currently has jurisdiction over the Veteran's claims. In his June 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO (Travel Board hearing). In November 2012, he withdrew his hearing request. In February 2013, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran was previously represented by the North Carolina Division of Veterans Affairs. In September 2011, prior to certification of the appeal to the Board, such representation was revoked. The Veteran is now unrepresented. 38 C.F.R. § 20.608(a) (2012). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The Veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of radiation treatment, to include dysuria and urinary frequency, enteritis, and erectile dysfunction, was received on March 3, 2008, and there is no evidence of any unadjudicated formal or informal claim prior to this date. CONCLUSION OF LAW The criteria for an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for dysuria and urinary frequency, enteritis, and erectile dysfunction and the award of SMC based on loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5101(a), 5110(a) (West 2002); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155(a), 3.350(a), 3.400, 4.115b, Diagnostic Code (DC) 7522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal for earlier effective dates for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for dysuria and urinary frequency, enteritis, and erectile dysfunction and the award of SMC based on loss of use of a creative organ arises from the Veteran's disagreement with the effective dates assigned after the grant of such benefits. The courts have held, and VA's General Counsel has agreed, that where an underlying claim 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained some of the identified relevant post-service VA treatment records and private medical records. In addition, the Veteran was afforded VA examinations for his claimed genitourinary disabilities. The Veteran's service treatment records are unavailable and are presumed to have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973. He reported on an "Authorization and Consent to Release Information" form (VA Form 21-4142) dated in May 2010 that he had received treatment for prostate cancer at the VA Medical Center in East Orange, New Jersey (VAMC East Orange) since 1990. In November 2010, VAMC East Orange indicated that it was unable to locate any treatment records dated during the period from January 1990 to February 22, 1995. Also, there is evidence that the Veteran has received private medical treatment for his genitourinary disabilities. However, there is no evidence that all appropriate efforts were undertaken by the agency of original jurisdiction (AOJ) to obtain all such records. Additionally, evidence associated with the claims file reflects that the Veteran has been in receipt of Social Security Administration (SSA) benefits since possibly as early as July 1989. There are no SSA records in the claims file. With respect to the Veteran's SSA benefits, the Veteran was 65 years old in July 1989 and he has not reported receipt of any SSA disability benefits. As any SSA benefits are "old age" benefits and not disability benefits, such records are not relevant to the issues on appeal. See 42 U.S.C.A. § 402 (West 2002). Moreover, as to the service treatment records, SSA records, VA treatment records, and private medical records identified above, such records are not relevant to the effective date issues on appeal because the effective date turns on when the Veteran filed a claim for the subject benefits. There is no indication or allegation that any service treatment records, SSA records, or additional VA treatment records or private medical records could show that the Veteran filed an earlier claim for benefits with VA. Thus, VA has no further duty to attempt to obtain any such records in regard to the effective date issues. There is no other reported relevant evidence that remains outstanding, nor is there any indication of the need for additional examinations or opinions. Further assistance is unlikely to assist the Veteran in substantiating entitlement to earlier effective dates. Analysis Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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); 38 C.F.R. § 3.400. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155(a). Any communication or action indicating 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. 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 filed as of the date of receipt of the informal claim. Id. 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. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A claim/application is defined 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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). SMC is payable at a specified rate if the Veteran, as the 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), 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, DC 7522. The current effective date of compensation under the provisions of 38 U.S.C.A. § 1151 for dysuria and urinary frequency, enteritis, and erectile dysfunction and of SMC based on loss of use of a creative organ is March 3, 2008, the date the Veteran's claim for such benefits was received. In his December 2008 notice of disagreement (VA Form 21-4138) and June 2009 VA Form 9, the Veteran and his former representative acknowledged that the Veteran's formal claim for 1151 benefits was submitted to VA in March 2008. However, they claimed that the Veteran had spoken with VA employees at the VA community based outpatient clinic in Brick, New Jersey on October 29, 2007, at which time he was informed that he had received an accidental overdose of radiation during his treatment for prostate cancer and that he could file a claim for benefits. He reportedly informed the VA employees that he would "probably file a claim," but that he wanted to first consult with his physician. He subsequently filed a formal claim for benefits with VA following an examination from his physician. Thus, he contends that the proper effective date of the benefits at issue in this appeal should be October 29, 2007 because his conversation with the VA employees on that date constituted an informal claim for benefits. The Veteran is competent to report that he spoke with VA personnel in October 2007 concerning the possibility of filing a claim for benefits. Moreover, there is nothing to explicitly contradict his reports and they are not inconsistent with the evidence of record. Thus, the Board finds that his reports concerning the October 2007 conversation are credible. Nevertheless, an informal claim must be in writing and an oral communication, by itself, does not constitute an informal claim for VA benefits. See Id. There is no evidence that the Veteran submitted any written formal or informal claim for any benefits related to a genitourinary disability, either on the basis of compensation under 38 U.S.C.A. § 1151 or on any other basis, at any time prior to his March 2008 claim (VA Form 21-526). As explained above, the Veteran has acknowledged that no such claim was submitted prior to that date. Hence, his October 2007 oral conversation in which he stated that would "probably file a claim" for benefits relating to the radiation overdose, without any further written evidence expressing such intent dated at that time, cannot be considered an informal claim for benefits. See 38 U.S.C.A. § 5101(a); Rodriguez, 189 F.3d at 1351; 38 C.F.R. §§ 3.1(p), 3.151(a). The Board notes that VA treatment records indicate that the Veteran was treated for genitourinary problems prior to March 3, 2008. However, treatment records cannot constitute an original claim for compensation benefits. MacPhee v. Nicholson, 459 F.3d 1323, 1327-28 (Fed. Cir. 2006). In sum, the Veteran never submitted any unadjudicated formal claim for benefits relating to dysuria and urinary frequency, enteritis, erectile dysfunction, or any other genitourinary disability (either on the basis of compensation under 38 U.S.C.A. § 1151 or any other basis) prior to March 3, 2008, nor is there any prior written communication in the record that could be considered an informal claim for VA compensation for the same. Moreover, the award of SMC based on loss of use of a creative organ was based on the award of benefits under 38 U.S.C.A. § 1151 for erectile dysfunction. See 38 U.S.C.A. § 1114(k), 38 C.F.R. §§ 3.350(a); 4.115b, DC 7522. Thus, March 3, 2008 is the earliest possible effective date for all the benefits at issue in this case. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Therefore, the Board finds that there is simply no basis upon which to justify granting an effective date earlier than March 3, 2008 and the appeal must be denied. ORDER Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for dysuria and urinary frequency is denied. Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for enteritis is denied. Entitlement to an effective date earlier than March 3, 2008 for the award of compensation under the provisions of 38 U.S.C.A. § 1151 for erectile dysfunction is denied. Entitlement to an effective date earlier than March 3, 2008 for the award of SMC based on loss of use of a creative organ is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs