Citation Nr: 18159971 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-60 107 DATE: December 20, 2018 ORDER Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction, is denied. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of the right lower extremity is denied. Entitlement to an effective date prior to July 20, 2012 for the grant of special monthly compensation (SMC) based on the loss of use of a creative organ is denied. Entitlement to an effective date prior to July 20, 2012, for the grant of basic eligibility for Dependents’ Educational Assistance (DEA) under Chapter 35 is denied. FINDINGS OF FACT 1. Pursuant to 38 C.F.R. § 3.400 (g), the Veteran is not entitled to an effective date earlier than July 20, 2012 for the grant of service connection for PTSD. 2. Pursuant to 38 C.F.R. § 3.400 (g), the Veteran is not entitled to an effective date earlier than July 20, 2012 for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction. 3. Pursuant to 38 C.F.R. § 3.400 (g), the Veteran is not entitled to an effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of left lower extremity. 4. Pursuant to 38 C.F.R. § 3.400 (g), the Veteran is not entitled to an effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of right lower extremity. 5. The schedular criteria for SMC due to loss of use of a creative organ were initially met July 20, 2012. 6. Entitlement to basic eligibility for DEA benefits arose on July 20, 2012, the effective date of the 100 percent rating for PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 20, 2012 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for an effective date earlier than July 20, 2012 for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 3. The criteria for an effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 4. The criteria for an effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of right lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 5. The criteria for an effective date earlier than July 20, 2012 for the award of SMC due to the loss of use of a creative organ have not been met. 38 U.S.C. §§ 1114, 5110 (2012); 38 C.F.R. §§ 3.400, 3.350 (2018). 6. The criteria for an effective date earlier than July 20, 2012 for the award of DEA benefits have not been met. 38 U.S.C. §§ 3500, 5110 (2012); 38 C.F.R. §§ 3.400, 3.807, 21.3020 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1968 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Appeals (VA) regional office (RO). EARLIER EFFECTIVE DATES Generally, and except as otherwise provided, 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 later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). In cases involving the correction of military records, as is the case here, an award is effective from the latest of the following dates: (1) date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date of receipt of claim if claim was disallowed; or (3) one year prior to date of reopening of disallowed claim. 38 U.S.C. § 5110(i) and 38 C.F.R. § 3.400(g). In January 1982, the Veteran filed a claim of service connection for post-Vietnam stress, which was essentially a claim for PTSD. In October 2010, he filed a claim of service connection for diabetes mellitus. The claims were denied in February 1982 and December 2010 rating decisions (respectively). The basis of the denials was that the Veteran received an other than honorable discharge from service. This was a bar to receipt of VA benefits. On February 15, 2012, VA received an informal claim for PTSD and on December 17, 2012 VA received a formal application, in part, for benefits for PTSD and diabetes mellitus, type II. In a May 2015 decision, the Department of the Navy, Board of Correction for Naval Records (BCNR), found that the Veteran’s naval record be corrected by upgrading the undesirable discharge that he received on September 15, 1970 to a general discharge under honorable conditions effective May 4, 2015. In response to an inquiry from VA in an August 31, 2015 e-mail, the Department of the Navy, BCNR, replied that the Veteran’s representative originally filed a petition with BCNR on July 20, 2012 requesting an upgrade of his discharge. Further, also of record is a coversheet from the Veteran’s representative to the BCNR, dated July 20, 2012, which states, in part, that an application for correction was enclosed. Moreover, also of record is a DD Form 149, Application for Correction of Military Record, filed with the BCNR, signed and dated by the Veteran on July 20, 2012. A September 2015 rating decision granted service connection for PTSD, diabetes mellitus, type II, with erectile dysfunction, diabetic peripheral neuropathy of the left lower extremity and diabetic peripheral neuropathy of the right lower extremity, each effective July 20, 2012. The September 2015 rating decision also awarded SMC due to loss of creative organ and DEA benefits, each effective July 20, 2012. The Veteran’s representative argues, as in a December 2015 notice of disagreement and November 2016 substantive appeal, and in other statements, that VA used an incorrect effective date granting benefits – from July 20, 2012, the date of the discharge upgrade rather than February 15, 2012, the date of the first informal benefits application. 1. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for PTSD As set forth above, with respect to the correction of military records, as is the case here, under 38 U.S.C. § 5110 (i) and 38 C.F.R. § 3.400 (g), an award is effective from the latest of the following dates: (1) date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date of receipt of claim if claim was disallowed; or (3) one year prior to date of reopening of disallowed claim. The regulation clearly states that the effective date assigned for the grant of VA benefits will be the latest of the identified dates. As applicable here, the Veteran’s disallowed claim for service connection for PTSD was received on January 28, 1982, his claim to reopen service connection for PTSD was received on February 15, 2012, so one year prior to that is February 15, 2011, and his discharge was upgraded based on a petition received by Department of the Navy, BCNR, filed on July 20, 2012. Again, the regulation states the effective date will be the latest of these three dates, and here that is July 20, 2012. Accordingly, there is no possible effective date earlier than July 20, 2012 for the grant of service connection for PTSD and the claim is denied. 2. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction As applicable here, the Veteran’s disallowed claim for service connection for diabetes mellitus, type II, was received on October 29, 2010. On February 15, 2012, the Veteran filed an informal claim for benefits, which was formalized within one year in an application for benefits received by VA on December 17, 2012, and the formal claim included a claim for entitlement to service connection for diabetes mellitus type, II. One year prior to the receipt of the informal claim provides a date of February 15, 2011. The Veteran’s discharge was upgraded based on a petition received by Department of the Navy, BCNR, filed on July 20, 2012. The regulation states the effective date will be the latest of these three dates, and here that is July 20, 2012. Accordingly, there is no possible effective date earlier than July 20, 2012 for the grant of service connection for diabetes mellitus, type II, and the claim is denied. 3. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of left lower extremity As applicable here, the Veteran’s disallowed claim for service connection for diabetes mellitus, type II, with a derivative claim of diabetic peripheral neuropathy of the lower extremities, was received on October 29, 2010. On February 15, 2012, the Veteran filed an informal claim, which was formalized within one year in an application for benefits received by VA on December 17, 2012, and the formal claim included a claim for entitlement to service connection for diabetes mellitus type, II, with a derivative claim for diabetic peripheral neuropathy of the lower extremities. One year prior to the receipt of the informal claim provides a date of February 15, 2011. The Veteran’s discharge was upgraded based on a petition received by Department of the Navy, BCNR, filed on July 20, 2012. The regulation states the effective date will be the latest of these three dates, and here that is July 20, 2012. Accordingly, there is no possible effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of left lower extremity, and the claim is denied. 4. Entitlement to an effective date prior to July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of right lower extremity As applicable here, the Veteran’s disallowed claim for service connection for diabetes mellitus, type II, with a derivative claim of diabetic peripheral neuropathy of the lower extremities, was received on October 29, 2010. On February 15, 2012, the Veteran filed an informal claim, which was formalized within one year in an application for benefits received by VA on December 17, 2012, and the formal claim included a claim for entitlement to service connection for diabetes mellitus type, II, with a derivative claim for diabetic peripheral neuropathy of the lower extremities. One year prior to the receipt of the informal claim provides a date of February 15, 2011. The Veteran’s discharge was upgraded based on a petition received by Department of the Navy, BCNR, filed on July 20, 2012. The regulation states the effective date will be the latest of these three dates, and here that is July 20, 2012. Accordingly, there is no possible effective date earlier than July 20, 2012 for the grant of service connection for diabetic peripheral neuropathy of right lower extremity, and the claim is denied. 5. Entitlement to an effective date prior to July 20, 2012 for the grant of SMC based on the loss of use of a creative organ Special Monthly Compensation 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. § 1114 (k); 38 C.F.R. § 3.350 (a). VA policy is to pay SMC for loss of use of a creative organ whenever a service-connected disease causes loss of erectile power. See 38 C.F.R. § 4.115b, Diagnostic Code 7522. In a September 2015 rating decision, entitlement to SMC for erectile dysfunction was granted effective July 20, 2012, the effective date of the grant of service connection for diabetes mellitus, type II, with erectile dysfunction. As discussed above, there is no legal basis for assignment of an earlier effective date for the grant of service connection for diabetes mellitus, type II, with erectile dysfunction; it, therefore, follows that there is no legal basis for assignment of an earlier effective date for the grant of SMC for loss of use of a creative organ. Accordingly, there is no possible effective date earlier than July 20, 2012 for the award of SMC based on the loss of use of a creative organ, and the claim is denied. 6. Entitlement to an effective date prior to July 20, 2012, for the grant of basic eligibility for DEA under Chapter 35 As set forth above, effective dates are generally awarded commensurate with the date of receipt of the claim for benefits or the date entitlement to those benefits arose, whichever is later. See 38 C.F.R. § 3.400. For the purposes of DEA benefits, basic eligibility exists for veterans discharged from service under conditions other than dishonorable and in receipt of a permanent and total service-connected disability rating. 38 U.S.C. § 3500; 38 C.F.R. §§ 3.807, 21.3020. There are other areas of basic eligibility but they involve factors not applicable here (e.g., the death of a veteran; a veteran on active duty, etc.). The September 2015 rating decision granted basic eligibility to DEA, effective July 20, 2012 as the Veteran was found to have a permanent and total service-connected disability effective that date (i.e., PTSD). As discussed above, the effective date of July 20, 2012, for the grant of service connection for PTSD, was proper. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, the effective date of such eligibility cannot precede the date permanent and total disability was awarded. Accordingly, there is no possible effective date earlier than July 20, 2012 for the grant of basic eligibility for DEA under Chapter 35, and the claim is denied. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel