Citation Nr: 18143310 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-03 186 DATE: October 18, 2018 ORDER An effective date prior to March 29, 2012 for the grant of service connection for erectile dysfunction (ED) is denied. An effective date prior to March 29, 2012 for the grant of special monthly compensation based on loss of use of creative organ is denied. FINDINGS OF FACT 1. In a December 2005 rating decision, the RO granted service connection for prostate cancer with a rating of 100 percent effective August 26, 2005; and in a November 2007 rating decision, the RO continued the 100 percent rating and stated that the Veteran’s prostate cancer “must be considered permanent and permanency is established for rating purposes” effective November 13, 2007. 2. In March 2012, the Veteran filed a claim for special monthly compensation based on loss of use of creative organ, and for erectile dysfunction; which was granted by the RO in an October 2012 rating decision with an effective date of March 29, 2012. The Veteran appealed the assigned effective date, alleging clear and unmistakable error in the November 2007 rating decision. 3. The November 2007 rating decision was not clearly and unmistakably erroneous in omitting an award of special monthly compensation based on loss of use of creative organ and service connection for erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 29, 2012, for the grant of special monthly compensation based on loss of use of creative organ are not met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400, 20.302, 20.303. 2. The criteria for an effective date prior to March 29, 2012, for the grant of service connection for erectile dysfunction are not met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400, 20.302, 20.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1970. The case is on appeal from an October 2012 rating decision, which granted service connection for erectile dysfunction and special monthly compensation for loss of use of creative organ effective March 29, 2012. In his January 2015 Form 9, the Veteran requested a Board hearing. In correspondence dated in October 2015 he withdrew that request. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Effective Date VA regulations provide that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2)(i). Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that (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). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. Id. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. 1. An effective date prior to March 29, 2012 for the grant of service connection for erectile dysfunction 2. An effective date prior to March 29, 2012 for the grant of special monthly compensation based on loss of use of creative organ In August 2005 the Veteran filed a claim for service connection for prostate cancer, and in a rating decision dated in December 2005 he was granted service connection for prostate cancer with a rating of 100 percent effective August 26, 2005. In correspondence dated in March 2007, the Veteran requested that his prostate cancer be rated as permanent and total. In a November 2007 rating decision, the RO continued the 100 percent rating for prostate cancer, and stated that the Veteran’s prostate cancer “must be considered permanent and permanency is established for rating purposes effective the date of the confirming VA examination on 11 13 07.” In correspondence dated in March 2012, the Veteran requested special monthly compensation based on loss of use of creative organ on the grounds of clear and unmistakable error in the 2007 rating decision; with the inference being that the Veteran should have been granted special monthly compensation at that time. The Veteran added that he has suffered from erectile dysfunction since his 2005 diagnosis of prostate cancer. In October 2012, the RO granted service connection for erectile dysfunction and special monthly compensation based on loss of use of creative organ effective March 29, 2012; and in December 2012 the Veteran filed his notice of disagreement with the assigned effective date. In January 2015 the Veteran clarified that he is requesting an earlier effective date of February 2005 for both awards. See January 2015 Form 9. The Veteran, who has had a 100 percent rating for prostate cancer since August 26, 2005, contends that he should have been granted special monthly compensation and service connection for erectile dysfunction at the time of the grant of service connection for prostate cancer because he had erectile dysfunction at that time. The Board is not persuaded. Prior to March 29, 2012, there is no medical evidence of spermatozoa. Moreover, while the Veteran reported some erectile dysfunction and occasional spontaneous erections during a September 2006 VA genitourinary examination, the examiner noted that the Veteran had had no treatment for his prostate cancer, and physical examination found normal male phallus; both testes descended bilaterally; no masses; and a benign and soft prostate. See also November 2007 Urology Outpatient Clinic Records authored by the same provider. The examiner thus concluded that the Veteran’s erectile dysfunction was not related to his prostate cancer (see September 2006 VA examination opinion); and there is no medical evidence of record to the contrary. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). In fact, the Veteran’s erectile dysfunction was never attributed by medical providers to his prostate cancer until a VA male reproductive systems-genitourinary examination in August 2012, when it was noted that the Veteran’s PSA had doubled from 8 to 16 since 2009, with the onset of severe erectile dysfunction at that time. The examiner averred that the etiology of the Veteran’s erectile dysfunction was “prostate enlargement secondary to untreated prostate cancer.” There is no competent evidence of a nexus between the Veteran’s erectile dysfunction and his untreated prostate cancer prior to the August 2012 VA examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). In this regard, the Board notes that in an opinion dated in September 2012, the August 2012 examiner remarked that the September 2006 negative nexus opinion (that the Veteran’s erectile dysfunction was not due to his prostate cancer) was questionable; however, this September 2012 evidence was not of record at the time of the November 2007 rating decision. Moreover, while there was right lobe enlargement consistent with prostate cancer and new onset of severe erectile dysfunction in 2009 (see August 2012 VA male reproductive system-genitourinary examination report, p. 10), this was years after the November 2007 rating decision; and there was no claim for this benefit until March 2012. As such, the Board finds that the November 2007 rating decision was not clearly and unmistakably erroneous based on the facts of the record at that time; and that decision is not revised. (Continued on the next page)   Consequently, an effective date prior to March 29, 2012 (the date of the current claim on appeal) for the grant of special monthly compensation and erectile dysfunction must in turn be denied as a matter of law. See 38 C.F.R. § 3.400 (b)(2)(i) (which provides that the effective date of an original award of direct service connection will be the date of receipt of claim or date entitlement arose, whichever is later). Although the Veteran apparently has had some erectile dysfunction since 2005 that, in hindsight, may have been secondary to his prostate cancer, the complained of November 2007 rating decision was not clearly and unmistakably erroneous based on the evidence of record at that time, and it is therefore not reopened and revised. The provisions of 38 C.F.R. § 3.400 (b)(2)(i) thus dictate with regard to this original (March 2012) claim for special monthly compensation and erectile dysfunction; which, in this case, is the date of receipt of claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel