Citation Nr: 1804705 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-03 661A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for service-connected hypertension, currently evaluated at 20 percent disabling. 2. Entitlement to an increased rating for a service-connected low back disorder, including radiating pain into the hip, associated with a service-connected right ankle disability, currently evaluated at 40 percent disabling ("hereinafter" back disability). 3. Entitlement to an increased rating for service-connected residuals, fracture to right ankle with traumatic arthritis and shortening of the right leg, currently evaluated at 30 percent disabling ("hereinafter" right ankle disability). 4. Entitlement to a separate compensable rating for service-connected shortening of the right leg, associated with a service-connected right ankle disability. 5. Entitlement to an effective date earlier than February 16, 2007, for the grant of special monthly compensation for loss of use of a creative organ. 6. Entitlement to an effective date earlier than January 29, 2010, for the grant of service connection for shortening of the right leg. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from September 1954 to September 1956 and from March 1965 to April 1983. These matters came before the Board of Veterans' Appeals (Board) from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington, which were merged into one appeal. The appeal for entitlement to an effective date earlier than February 16, 2007, for the grant of special monthly compensation for loss of use of a creative organ arose from a September 2007 rating decision. The appeal for an increased rating for hypertension arose from a May 2008 rating decision. The appeals for an initial increased rating for a back disability and increased rating for a right ankle disability arose from a September 2010 rating decision. The appeals for a separate compensable rating and earlier effective date for service-connected shortening of the right leg, associated with a service-connected right ankle disability arose from a March 2013 rating decision. The issue(s) of entailment to increased ratings for hypertension, a back disability, right ankle disability, and shortening of the right leg, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's claim for loss of use of a creative organ was inferred by the RO when the Veteran claimed an increased in the severity of his service-connected prostate gland injuries on February 16, 2007. 2. The Veteran was first diagnosed with erectile dysfunction on August 7, 2007. 3. There was no claim, formal or informal, for service connection for the shortening of the right leg before January 29, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 16, 2007, for the grant of special monthly compensation based on loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114 (k), 5101, 5110, 7105; (West 2012); 38 C.F.R. § 3.151, 3.400, 3.350 (2017). 2. The criteria for an effective date earlier than January 29, 2010,for shortening of the right leg have not been met. 38 U.S.C. §§ 5101, 5110, 7105; (West 2012); 38 C.F.R. § 3.151, 3.400, 3.350 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The question of the appropriate effective date to be assigned is a downstream element of the award of service connection, and no further notice is required. Hart v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Here, the Veteran has made no such assertions of prejudice. Accordingly, VA's duty to notify has been satisfied. VA's duty to assist the Veteran has also been satisfied in regards to the earlier effective date claim. The Veteran is not alleging that there are any outstanding documents related to the claim. Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. II. Earlier Effective Date Laws and Regulations The Veteran contends he is entitled to an effective date before February 16, 2007 for his award of special monthly compensation for loss of use of a creative organ and earlier than January 29, 2010 for his service-connected shortness, right leg, secondary to his service-connected right ankle disability. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary 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); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. An informal claim must identify the benefit sought. If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under 38 C.F.R. 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital pertaining to the service-connected disability will be accepted as an informal claim for increased benefits. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The date on the VA outpatient or hospital examination report will be accepted as the date of claim. 38 C.F.R. 3.157(b). A. Erectile Dysfunction On February 16, 2007, the Veteran called the VA to file for an increased rating for his service-connected prostate disability. Specifically, the Veteran reported his prostate gland injuries had increased in severity. A review of the Veteran's claims file reveals no other applications or statements on the part of the Veteran filed prior to February 16, 2007 that can be interpreted as an informal claim for benefits concerning this issue of erectile dysfunction. In fact, a formal claim for entitlement to special monthly compensation for loss of use of a creative organ is not found anywhere in the record, rather, the RO inferred the claim as part of the increased rating for a prostate disability claim. In August 2007, the Veteran underwent a VA examination to determine the severity of the service-connected prostate disability. The Veteran reported impotence that began in January 2007. He further reported no treatment for the impotence and that symptoms began after a January 2007 seed implantment for his prostate disability. The VA examiner diagnosed the Veteran with prostate cancer with urinary incontinence, impotence, and urinary infections. VA treatment records contain an October 2005 Agent Orange Protocol examination. During the examination, the Veteran reported a history of erectile dysfunction for five to six years with difficulty both achieving and maintaining an erection. The VA examiner diagnosed erectile dysfunction with a low total, normal calculated, wealy bound and free testosterones. In a September 2007 rating decision, the Veteran was awarded special monthly compensation for loss of use of a creative organ due to erectile dysfunction, effective February 16, 2007, the date the claim for an increased rating for the service-connected prostate disability was received. In October 2007, the Veteran filed a notice of disagreement with the September 2007 rating decision. Specifically, the Veteran disagreed with the assigned effective date for the award of loss of use of a creative organ and stated that the effective date should go back to 2005. The Board has reviewed the October 2005 Agent Orange Protocol examination, which notes the Veteran's report of erectile dysfunction and diagnosis of erectile dysfunction with a low total, normal calculated, wealy bound and free testosterones. However, this examination does not constitute a claim for erectile dysfunction. The Board emphasizes that a veteran is required to file a claim to obtain benefits and that, at a minimum, the veteran must identify the benefit sought in such a claim. See 38 C.F.R. §§ 3.151, 3.155. Further, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[M]ere receipt of medical records cannot be construed as an informal claim."); Brannon v. West, 12 Vet. App. 32, 35 (1998) ("[T]he Board is not required to conjure up issues that were not raised by the appellant."). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Here, the October 2005 Agent Orange Protocol examination diagnosed erectile dysfunction. However, the VA examiner did not attribute erectile dysfunction to any other disability. In fact, based on the diagnosis provided, it appeared the VA examiner linked the erectile dysfunction to the Veteran's testosterone levels. Therefore, the RO could not reasonably be expected to infer a claim for service connection for a condition that was not mentioned in relation to any service-connected disability. Brannon, 12 Vet. App. 32, 35 (1998) On February 16, 2007, the Veteran filed for an increased rating for his service-connected prostate disability. After undergoing a VA examination for the service-connected prostate special monthly compensation for loss of use of a creative organ was granted effective the date of the claimed increase for the service-connected prostate disability. Accordingly, entitlement to an effective date prior to February 16, 2007 for the award of special monthly compensation for loss of use of a creative organ is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b). B. Shortness of the Right Leg On January 29, 2010, the VA received a claim for shortness of the left leg, secondary the service-connected right ankle disability. The Board notes that the medical evidence shows it was the Veteran's right leg that was in fact shorter, and will therefore refer to the disability as one in right leg. A review of the Veteran's claims file reveals no other applications or statements on the part of the Veteran filed prior to January 28, 2010 that can be interpreted as an informal claim for benefits concerning this issue of shortness of the right leg. A January 27, 2010 VA podiatry note indicated that the Veteran had a 1.5 cm limb length discrepancy, easured with the right shorter than the left. A request for a prosthetic heel lift was made. In April 2010, the Veteran underwent a VA examination to determine the nature and etiology of any right leg conditions. Measurements of the Veteran's leg revealed that his legs were both 88.9 cm and that there was no discrepancy in the length between the legs. In a September 2010 rating decision, the RO denied service connection for a shortening of the right leg. In October 2010, the Veteran filed a notice of disagreement. In a March 2013 rating decision, the Veteran was awarded service connection for shortening of the right leg, effective January 29, 2010, the date the claim for shortness of the right leg was received. In March 2013, the Veteran filed a notice of disagreement with the March 2013 rating decision. Specifically, the Veteran disagreed with the assigned effective date for the award of service connection for shortness of the right leg. The Veteran incorrectly indicated the effective as 1991, the effective date for the right ankle disability, but subsequent correspondence makes clear the Veteran intended to appeal the effective date for the award service connection for shortness of the right leg. See May 2014 Substantive Appeal. With respect to the earlier effective date claim on appeal here, the Board will focus the analysis on determining the proper date of the claim and the proper date of when entitlement arose. Thereafter, the proper effective date is determined by taking the later of the two dates determined. See 38 C.F.R. § 3.400. Thus, the question before the Board is whether there is any evidence in the file that can be construed as a claim prior to the claim received on January 29, 2010. After reviewing the record, the Board concludes that there are no documents submitted prior to January 29, 2010, indicating intent to request a claim of entitlement to service connection for shortening of the right leg. Furthermore, the Board concludes that there are no treatment records that constitute an informal claim for benefits prior to January 29, 2010. In MacPhee v. Nicholson, the United Stated Court of Appeals for the Federal Circuit (Federal Circuit) found that the mere mention of a condition in a medical record alone could not be construed as a claim for service connection. 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157 (2016). Rather, the Federal Circuit found that "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." Id. ; see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Because the record contains no indication that the Veteran filed a claim for service connection for shortness of the right leg prior to January 29, 2010, the Board finds that the Veteran's claim for an earlier effective date must be denied. In fact, the current evidence of record appears to show the shortness in the right leg was first discovered at a VA podiatry appointment the day before the claim was filed. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of an effective date earlier than January 29, 2010, for the award of service connection for shortness of the right leg, secondary to a service connected right ankle disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert, at 53-56. ORDER Entitlement to an earlier effective date prior to February 16, 2007, for grant of special monthly compensation based upon loss of use of a creative organ, is denied. Entitlement to an earlier effective date prior to January 29, 2010, for grant of service connection for shortness of the right leg, secondary to service-connected right ankle disability, is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the appeals for increased evaluations for the service-connected hypertension, back disability, and right ankle disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). The Veteran contends the severity of the service-connected back disability, right ankle disability, and hypertension have worsened beyond their currently assigned ratings. During the pendency of the appeal, the Veteran has continued to undergo treatment for each of the service connected conditions. Further, the Veteran last underwent VA examinations for the service-connected hypertension in May 2013, back disability in April 2010, and the right ankle disability in April 2010. While the passage of time alone does not warrant a new examination, given the extent of treatment the Veteran has received for the disabilities, and his complaints of worsening, the Board finds that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's claim for entitlement to a separate compensable rating for service-connected shortening of the right leg is inextricably intertwined with the issue of entitlement to an increased rating for the service-connected right ankle disability, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to a separate compensable rating for service-connected shortening of the right leg cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Associate any VA treatment records since March 2016 with the Veteran's electronic claims file. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected hypertension. 3. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his back disability. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. 4. Schedule the Veteran for a VA orthopedic examination to determine the current severity of his right ankle disability. The entire claims file, including any newly obtained treatment records, must be reviewed by the examiner and all necessary tests should be conducted. The examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should also note any flare-ups to include describing, if possible, any additional degrees of limited motion during these flare-ups, or due to such factors as pain, pain on motion, weakness, incoordination, or fatigability. If the examiner is unable to conduct the required testing or concludes that the required testing is unnecessary, he or she should explain why that is so. The examiner should also opine as to the impact of the Veteran's orthopedic disabilities on his daily activities and identify any motion or activities that would be restricted and the degree to which that would occur. A complete rationale for any opinions expressed is requested. 5. After completion of the above and compliance with the requested actions has been ensured, readjudicate the appeal in light of all the evidence of record. If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs