Citation Nr: 18149558 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-38 249A DATE: November 9, 2018 ORDER Entitlement to an effective date prior to February 25, 2011 for the award of special monthly compensation (SMC) based upon loss of use of a creative organ is denied. REMANDED Entitlement to an effective date prior to February 24, 2011 for a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) is remanded. FINDING OF FACT The evidence reflects that the Veteran did not file a service connection claim for erectile dysfunction prior to February 25, 2011 and did not have a pending increased rating claim for a lumbar spine disability. CONCLUSION OF LAW The criteria for an effective date prior to February 25, 2011 for the grant of SMC based upon loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114(k), 5107(b), 5110(g), 7105(a); 38 C.F.R. §§ 3.104, 3.114(a) (2015), 3.155(a) (in effective prior to March 24, 2015), 3.156 (a)-(b) (2015), 3.157(b)(1) (in effective prior to March 24, 2015), 3.350(a), 4.71a, Diagnostic Code 5442, 20.302, 20.1103 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and November 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The May 2012 rating decision granted entitlement to SMC based upon loss of use of a creative organ from February 25, 2011. The November 2012 rating decision granted entitlement to TDIU from February 25, 2011. The Veteran timely appealed the assigned effective dates from both rating decisions. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting freestanding earlier effective date claims). In a September 2014 rating decision, the RO granted the current February 24, 2011 effective date for entitlement to TDIU. As this rating action is not a complete grant of the benefit sought, an earlier effective date for TDIU remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). I. Duty to notify and assist 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. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, the VCAA requires VA to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017). In this case, the claims for an earlier effective date arise from the Veteran's disagreement with the effective date assigned in connection with the initial award for special monthly compensation for loss of use of a creative organ. 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 notice or there is no prejudice from absent notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). The Veteran is not prejudiced by any notification deficiency. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 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). All the pertinent evidence is already of record with respect to the Veteran's earlier effective date claim in dispute. The Veteran has not identified and the record does not show that there is outstanding evidence relevant to the earlier effective date claim. There is no indication a retrospective medical opinion would benefit the Veteran. No further assistance is necessary. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. The earlier effective date claim for SMC based upon loss of use of a creative organ addressed below is ready to be considered on the merits. II. Entitlement to an effective prior to February 25, 2011 for special monthly compensation (SMC) based upon loss of use of a creative organ. Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be 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, the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Prior to March 24, 2015, a claim could be either a formal or an informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2014); But see 38 C.F.R. § 3.1(p) (2016) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). It has been held that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing . . . It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). In this case, the May 2012 rating decision awarded SMC based upon loss of use of a creative organ from February 25, 2011, as part of a service connection award for erectile dysfunction (ED) secondary to service-connected lumbar spine disability. The RO did not state the reason for the effective date. It appears the RO inferred a separate service connection claim for ED from the Veteran’s testimony at the February 25, 2011 Board hearing for entitlement to TDIU. Prior to February 25, 2011, there is no communication that could be construed as an informal claim for either service connection for ED or an increased rating for the lumbar spine disability. 38 C.F.R. § 3.1(p) (2014). The January 2006 rating decision awarded service connection for a lumbar spine disability is final as explained below. The Veteran did not appeal this rating decision, nor was new and material evidence received with respect to the claim within a year of the January 2006 rating decision. See Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). The August 2006 statement from the Veteran shows that he disputed the denial of TDIU and the RO’s weighing of the evidence in the first instance. The accompanying February 2006 letter from Dr. R summarizes the Veteran’s pain management therapy. However, the January 2006 rating decision considered a March 2003 letter from Dr. R. The March 2003 letter by Dr. R is substantially similar to his February 2006 letter summarizing the Veteran’s pain management therapy and is not new and material evidence. Id. The Board also notes that VA treatment records received in August 2008 identified ED as a separate manifestation of the service-connected lumbar spine disability as early as December 2006. However, the mere existence of ED, and a notation that the ED is related to a service-connected disability does not, by itself, reasonably raise an SMC claim, particularly where there is no pending claim for an increased rating for the lumbar spine disability. Thus, this evidence cannot be considered new and material evidence received within a year of the January 2006 rating decision for purposes of consideration under 38 C.F.R. § 3.156(b). For these reasons, the Board finds that the January 2006 rating decision which did not also grant service connection for ED and/or include separate ratings for ED is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103; Id. In summary, the evidence weighs against this claim and the reasonable doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An effective date prior to February 25, 2011 for the award of (SMC) based upon loss of use of a creative organ must be denied. REASONS FOR REMAND Entitlement to an effective date prior to February 24, 2011 for entitlement to TDIU is remanded. In September 2004, the Veteran filed the instant TDIU claim. He appealed the January 2006 RO rating decision denying entitlement to a TDIU to the Board. In March 2011, the Board remanded this issue for further development, which resulted in the RO granting a TDIU in the currently appealed November 2012 rating decision. Prior to February 24, 2011, the Veteran does not meet the initial threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) and the Board is precluded from considering TDIU in the first instance pursuant to 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). However, the reports prior to February 24, 2011 concerning the Veteran’s service-connected lumbar spine and bilateral polyradiculopathy disabilities indicate these disabilities cause unemployability. See March 2003 Social Security Administration (SSA) disability decision; September 2004 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability; June 2009 private medical records. This claim must be remanded for referral to the Director, Compensation Service for consideration of whether a TDIU prior to February 24, 2011 is warranted on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). (Continued on the next page)   The matter is REMANDED for the following action: 1. Refer the issue of entitlement to an effective date prior to February 24, 2011 for TDIU to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel