Citation Nr: 1806945	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-16 594	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1. Entitlement to an effective date prior to January 15, 2010 for the grant of service connection for erectile dysfunction.

2. Entitlement to an initial compensable rating for erectile dysfunction. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Carsten, Counsel




INTRODUCTION

The Veteran served on active duty from April 1990 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.

The Board acknowledges that additional evidence was added to the record following certification of the appeal. To the extent this information was submitted by the Veteran, automatic waiver applies. See 38 U.S.C. § 7105(e) (2012). As concerns evidence added by VA, a review of the claims folder shows it essentially duplicates information and evidence previously of record and a remand for a supplemental statement of the case would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 

The issue of entitlement to an initial compensable rating for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

On January 15, 2010, VA received a claim of entitlement to service connection for erectile dysfunction; there are no communications or submissions prior to this date that could be construed as a claim for service connection for erectile dysfunction. 



CONCLUSION OF LAW

The criteria for an effective date prior to January 15, 2010 for the grant of service connection for erectile dysfunction are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Analysis

Review of the claims folder shows that on January 15, 2010, VA received a claim of entitlement to service connection for erectile dysfunction. In March 2010, the claim was denied and the Veteran submitted a notice of disagreement. In July 2013, VA granted entitlement to service connection for erectile dysfunction as secondary to service-connected organic brain syndrome with primary insomnia, PTSD, depression and anxiety. A noncompensable rating was assigned effective January 15, 2010. The Veteran disagreed with the rating and effective date and perfected this appeal. 

The Veteran essentially contends an effective date earlier than January 15, 2010 is warranted because the problem dates back to when the in-service attack and resulting brain injury occurred. 

The assignment of effective dates of awards is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). More specifically, the effective date of an award of disability compensation for service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

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. § 5101(a) (2012); 38 C.F.R. § 3.151 (a) (2017). A "claim" or "application" is 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) (2014). An informal claim is any communication indicating intent to apply for one or more benefits. The benefit being sought must be identified. 38 C.F.R. § 3.155 (2014). 

VA's regulations pertaining to "claims" were recently amended. These amendments apply to claims filed on or after March 24, 2015. The current appeal was pending prior to that date and the amended regulations, which are less favorable, are not for application.

In determining whether the Veteran is entitled to an earlier effective date, the Board must consider whether he filed a claim for erectile dysfunction prior to January 15, 2010. The Board acknowledges the Veteran's contentions and notes that service connection for the skull fracture and resultant psychiatric issues was established effective April 18, 1992, the day following discharge from service. Notwithstanding, the Veteran did not submit a claim for erectile dysfunction within one year following discharge and the Board finds no communication or other submission prior to January 15, 2010 that could be construed as indicating an intent to seek or apply for service connection for erectile dysfunction. In making this determination, the Board notes that the mere existence of medical records generally cannot be construed as an informal claim. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).

In summary, a claim of entitlement to service connection for erectile dysfunction was not received prior to January 15, 2010 and without evidence of a claim prior to that date, there is simply no legal basis for assigning an earlier effective date. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2017).


ORDER

Entitlement to an effective date prior to January 15, 2010 for the grant of service connection for erectile dysfunction is denied.


REMAND

The Veteran contends that a compensable rating is warranted for erectile dysfunction. In November 2017, the representative requested that the appeal be remanded for a VA examination because to date, the Veteran had not been provided one to determine the severity of his disability. 

Pursuant to the duty to assist, the Board finds a current examination is warranted. 

Accordingly, the case is REMANDED for the following action:

1.  Please obtain any outstanding VA and non-VA treatment records with respect to the Veteran's service-connected erectile dysfunction.

2.  Schedule the Veteran for a VA examination to determine the current nature and severity of service-connected erectile dysfunction. The electronic claims folder must be available for review. A complete rationale must be provided for any opinion offered. 

3.  Upon completion of the requested development and any additional development deemed appropriate, readjudicate the issue of entitlement to an initial compensable rating for erectile dysfunction. If the benefit sought on appeal remains denied, the appellant and his representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.

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 (2012).




______________________________________________
M. C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs