Citation Nr: 1437764 Decision Date: 08/25/14 Archive Date: 09/03/14 DOCKET NO. 11-19 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than May 18, 2010, for the grant of service connection for erectile dysfunction (ED). 2. Entitlement to an effective date earlier than May 18, 2010, for the grant of entitlement to special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran had active service from March 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for ED, effective from May 18, 2010, and granted SMC due to loss of use of a creative organ, also effective from May 18, 2010. FINDINGS OF FACT 1. The Veteran's original claim for service connection for ED and for SMC based on loss of use of a creative organ, was received on May 18, 2010, more than one year following his separation from active service. 2. Prior to May 18, 2010, there was no formal claim, informal claim, or written intent to file a claim for entitlement to service connection for ED and/or for SMC for loss of use of a creative organ. 3. The date that entitlement arose for secondary service connection for ED, and for the derivative claim for SMC based on loss of use of a creative organ, was in August 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 18, 2010, for the grant of service connection for ED have not been met. 38 U.S.C.A. § 5110 (West. 2002); 38 C.F.R. § 3.400 (2013). 2. The criteria for an effective date earlier than May 18, 2010, for the derivative grant of entitlement to SMC for loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002); 38 C.F.R. §§ 3.155 , 3.157, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1) ; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The notice should address all elements of the claim, including the "downstream" disability rating and effective date elements. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that as to the issue of service connection for ED and for SMC based on loss of use of a creative organ, the RO provided the Veteran with pre-adjudication notice by a letter dated in June 2010. In that letter he was provided notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, supra. As to the appeal for an earlier effective date for service connection, in a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, supra. The Veteran bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board finds that that burden has not been met in this case. The Veteran has been given a meaningful opportunity to participate effectively in the processing of his claim such that any notice error did not affect the essential fairness of the adjudication now on appeal. He was notified that his claim for service connection for ED and for SMC based on loss of use of a creative organ were awarded with an effective date of May 18, 2010, the date of his claims for service connection and for SMC, and an initial rating was assigned. He was provided notice how to appeal that decision, and he did so. He was also provided a statement of the case that advised him of the applicable law and criteria required for an earlier effective date. He was assigned the date of the claim as an effective date, the earliest permitted by law (see 38 U.S.C.A. § 5110(a)), and he has appealed the effective date assigned for the grant of service connection and the grant of SMC. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and he has not contended otherwise. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time II. Factual Background and Analysis The Veteran essentially contends he should be entitled to an effective date back to January 2001 for the grant of service connection for ED and for the grant of SMC based on loss of use of a creative organ. He contends that he started on Viagra in January 2001 and that he has been struggling with ED since that time. The effective date of an award based on an original claim for disability compensation shall be the day following separation from active service or date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date of the award will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In reviewing the claim, the Board notes that the Veteran's informal claim for service connection for ED and for SMC based on ED was received on May 18, 2010. Thereafter, by October 2010 rating decision, the RO granted service connection for ED (as secondary to the service-connected diabetes mellitus), and granted entitlement to SMC based on loss of use of creative organ, effective from May 18, 2010. As the Veteran first submitted a claim for secondary service connection regarding his ED in May 2010, approximately 30 years after service, the effective date of the grant of service connection will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 3.400(b)(2)(i). Turning to the question of whether in this case the Veteran submitted an informal claim for secondary service connection for ED prior to May 2010, the Board finds that he did not, under either § 3.155 or § 3.157. There is a VA treatment record dated in January 2001 showing that the Veteran complained of an inability to sustain erections, and the diagnosis was ED (erectile dysfunction). Thereafter, in May 2002, it was noted that he had a new onset of type 2 diabetes, and that he had ED for which his Viagra prescription was to be reinstated. However, as to whether these VA treatment records may be construed as an informal claim, the Board notes that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA treatment records and reports are only considered to be informal claims when a formal claim for compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability was not compensable in degree. 38 C.F.R. § 3.157 (b). Essentially, VA treatment notes and reports are only considered informal claims for increased disability ratings and not for entitlement to service connection. Although the earliest medical evidence of record shows that the Veteran received treatment for his ED in 2001 and that he began to receive treatment for diabetes in 2002, there was no competent medical evidence at that time showing that the ED was related to his diabetes. Until there was competent medical evidence showing that the Veteran's ED was proximately due to or the result of the service-connected diabetes, entitlement to secondary service connection for ED was not warranted. 38 C.F.R. § 3.310. It was not until August 2010 when a VA examiner opined that the Veteran's ED was as likely as not secondary to diabetes. The examiner also noted that the Veteran did begin to have trouble prior to the diagnosis of diabetes, but that the diabetes was as likely as not the primary cause of his ED. Thus, entitlement to secondary service connection for ED did not arise until August 2010, when the VA examiner rendered an opinion linking the Veteran's ED to his diabetes. Moreover, the Board notes that even accepting the Veteran's assertion that entitlement arose in 2001 or 2002, the assignment of an effective date is determined to be the date entitlement arose or the date the claim was received, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 3.400(b)(2)(i). Accordingly, the appropriate effective date in the present case would still be May 18, 2010, the date his claim was received, as this is the later date. In conclusion, despite the fact that the Veteran was treated for ED as early as 2001, he did not file claims of entitlement to service connection for ED and/or for SMC until May 18, 2010. Thus, the preponderance of the evidence is against the claim, and an effective date earlier than May 18, 2010, for service connection for ED as secondary to the service-connected diabetes, and for entitlement to SMC based on loss of use of a creative organ is not warranted. ORDER An effective earlier than May 18, 2010, for the grant of service connection for ED is denied. An effective date earlier than May 18, 2010, for the grant of entitlement to SMC for loss of use of a creative organ is denied. ____________________________________________ GAYLE STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs