Citation Nr: 1807510	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  12-33 714A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an effective date prior to August 8, 2009, for the award of special monthly compensation (SMC) for loss of use of a creative organ.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and the Veteran's spouse


ATTORNEY FOR THE BOARD

D. Ware, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Marine Corps from August 1976 to January 1977, August 1980 to August 1982, and January 1983 to March 1988.
	
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In October 2017, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript has been associated with the record.


FINDINGS OF FACT

1. The record does not contain evidence that may be liberally construed as a claim for the award of SMC due to loss of creative organ prior to August 8, 2009.  

2. Entitlement to SMC due to loss of creative organ was not established prior to August 8, 2009.

3. At the time of the May 2010 rating decision, there was a tenable basis for the RO to infer and grant an award of SMC due to loss of creative organ.


CONCLUSION OF LAW

The criteria for an effective date prior to August 8, 2009 for the award of special monthly compensation due to loss of creative organ have not been met.  38 U.S.C.A. §§ 1114, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.350(a), 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Generally, the effective date of an evaluation and 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 the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  SMC 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.A. § 1114, 38 C.F.R. § 3.350.  However, such compensation is subject to the general provisions relative to the effective date of disability compensation noted above.

The Veteran contends that he is entitled to an effective date prior to August 8, 2009, for the award of special monthly compensation due to loss of creative organ.  He stated that he was entitled to an effective date of September 30, 2003, the date he began treatment for erectile dysfunction.  See July 2010 Notice of Disagreement; October 2017 Transcript of Hearing.  

For claims filed prior to March 24, 2015, the Board is required to review all the communications in the file that could be interpreted to be a claim for benefits.  A claim is defined as a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. §§ 3.1(p); 3.155.  Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim.  38 C.F.R. § 3.155(a).  Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing."  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 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 an intent to file a claim for VA benefits).

VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  See Brannon v. West, 12 Vet. App. 32, 35   (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it").

The Board has thoroughly reviewed the evidence of record prior to August 8, 2009, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection, during that time.  On August 8, 2009, a VA examiner opined that erectile dysfunction was at least as likely as not related to the Veteran's service-connected hypertension.  Subsequently, in a May 2010 rating decision, the RO inferred a claim for SMC from the "favorable" August 2009 VA examination report and deemed the disability picture to be sufficient to establish loss of use of a creative organ for SMC purposes.  See 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a).  However, the record does not contain any evidence that establishes or may be liberally construed as a claim for SMC due to loss of use of a creative organ prior to August 8, 2009.

Although the Board is sympathetic to the Veteran's contention that he should be awarded SMC prior to August 8, 2009, the Board is bound by the applicable statutes and regulations.  38 U.S.C.A. § 7104(c)(West 2014); 38 C.F.R. § 20.101(a)(2017).  As noted above, an effective date is assigned based on the date of claim or the date entitlement arose, whichever is later.  Thus, the proper effective date is August 8, 2009, the date of the inferred claim.  Accordingly, an earlier effective date is not warranted for the award of SMC due to loss of use of a creative organ.


ORDER

An effective date prior to August 8, 2009 for the award of SMC due to loss of use of a creative organ is denied.


____________________________________________
ANTHONY C. SCIRÉ, JR.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs