Citation Nr: 20021313 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-29 838 DATE: March 25, 2020 ORDER Entitlement to an effective date prior to August 18, 2014, for the grant of a 40 percent disability rating for service-connected erectile dysfunction status post bilateral orchiopexy due to recurrent testicular torsion (erectile dysfunction), is denied. FINDING OF FACT VA received an increased rating claim for erectile dysfunction on August 18, 2-14. Prior to August 2014, there was no pending erectile dysfunction increased rating claim that remained unadjudicated; the Veteran did not meet the criteria for the 40 percent disability rating for his erectile dysfunction prior to August 18, 2014. CONCLUSION OF LAW The criteria for an effective date prior to August 18, 2014, for the grant of the 40 percent evaluation for service-connected erectile dysfunction have not been met. 38 U.S.C. § §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400, 4.1, 4.2, 4.7, 4.41, 4.115, Diagnostic Code 7518 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to December 2004. In March 2017, the Veteran withdrew his request for a Board hearing. See March 2017 Hearing Request Correspondence. Earlier Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § § 3.400. A rating decision becomes final and binding if the veteran does not timely perfect an appeal of the decision, or unless new and material evidence is received prior to the expiration of the appeal period. 38 U.S.C. § § 7105; 38 C.F.R. § §§ 3.104(a), 3.160(d), 3.156, 20.200, 20.302, 20.1103. Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § §§ 3.105(a), 20.1400. In order for a veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § § 5101(a). In pertinent part, prior to March 24, 2015, any communication or action indicating an intent to apply for one or more VA benefits could be considered an informal claim. Under 38 C.F.R. § § 3.155(a), the veteran or a representative of the veteran could file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim had not been filed, an application form would be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it would be considered filed as of the date of receipt of the informal claim. An “application” is used synonymously with “claim” and defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The AOJ granted service connection for erectile dysfunction in a May 2007 rating decision; the Veteran did not appeal the decision. The May 2007 decision became final. The Veteran filed an August 2014 claim for increased rating for erectile dysfunction. In a January 2015 rating decision, the AOJ granted an increased rating for erectile dysfunction from noncompensable to 40 percent, effective August 18, 2014. Following the final May 2017 rating decision, the first communication from the Veteran seeking an increased disability rating for erectile dysfunction disability was in August 2014. On August 18, 2014, VA received the Veteran’s claim for increased rating for erectile dysfunction. See August 2014 VA Form 21-526EZ. In a January 2015 rating decision, the AOJ granted an increased rating for erectile dysfunction from noncompensable to 40 percent, effective August 18, 2014. In a May 2015 notice of disagreement (NOD), the Veteran disagreed with the effective date of the award and stated that he disputed the effective date because his original claim for erectile dysfunction was in January 2005. The Veteran contends he is entitled to an earlier effective for the grant of the 40 percent disability rating. First, the Board finds that entitlement to an effective date of January 1, 2005, for the grant of the 40 percent disability rating for erectile dysfunction disability cannot be established. As discussed above, the May 2007 rating decision became final. To date, CUE has not been asserted by the Veteran, and is not presently before the Board on appeal. Accordingly, the Board finds an effective date for the grant of a 40 percent disability rating for erectile dysfunction disability cannot be established prior to the final May 2007 rating decision. See 38 C.F.R. § 3.400. Next, the Board finds the Veteran did not have a valid claim for increased rating filed, either formal or informal, for an increased disability rating prior to the August 18, 2014 claim. Following the unappealed May 2007 rating decision, the evidence of record does not support that either the Veteran indicated an intent to apply for an increased disability rating, or indicating the Veteran’s erectile dysfunction disability had worsened, prior to the communication received on August 18, 2014. Further, the Board finds that a valid formal or informal claim was not received in accordance with 38 C.F.R. § 3.157. Therefore, the question before the Board is when it is shown from the evidence of record that the Veteran met the criteria for the 40 percent disability rating for his erectile dysfunction disability. See 38 C.F.R. § 3.400(o)(1). The Board is to determine the “earliest date as of which,” within the year prior to the claim, the increase in disability was ascertainable. See Servello, 3 Vet. App. 196; 38 U.S.C. §§ 5110(b)(2); 38 C.F.R. §§ 3.155, 3.400(o)(2). Pursuant to the rating criteria for diagnoses of the genitourinary system, the Veteran’s service-connected erectile dysfunction is rated at 40 percent beginning August 18, 2014 under Diagnostic Code 7518. See 38 C.F.R. § 4.115b. Diagnostic Code 7518 indicates that stricture of urethra is to be rated as voiding dysfunction. Pursuant to the rating criteria for dysfunctions of the genitourinary system, voiding dysfunction, to include continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, is assigned, in pertinent part, a 40 percent disability rating when requiring the wearing of absorbent materials which must be changed two to four times per day. See 38 C.F.R. § 4.115a. The Board has reviewed the evidence of record for the period between August 2013 and August 2014, and the Board finds that the evidence does not support that it is factually ascertainable that prior to the Veteran’s August 18, 2014 claim, that his erectile dysfunction disability increased in severity to meet the criteria for a 40 percent disability rating. The medical evidence in the file pertaining to the erectile dysfunction disability, for the relevant period is sparse. While the Board notes the Veteran’s contentions and reported symptomology for the relevant period, the Board finds that the objective evidence of record does not support that the Veteran’s symptoms more nearly approximated the criteria for a 40 percent disability rating prior to August 18, 2014. In this regard, for the relevant period from August 2013, the evidence does not support that the Veteran’s erectile dysfunction resulted in continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, that required the wearing of absorbent materials which must be changed two to four times per day. Instead, the first evidence of record to support a 40 percent disability rating for his erectile dysfunction was in the December 2014 VA examination report. Accordingly, the Board concludes that the Veteran is not entitled to an effective date prior to August 18, 2014, his date of claim for increased rating, for the grant of the 40 percent disability rating for erectile dysfunction. 38 C.F.R. § 3.400(o). Therefore, the Board finds that an effective date prior to August 18, 2014, for the grant of the 40 percent rating for erectile dysfunction disability is not warranted and the claim is denied. See 38 U.S.C. § § 5107(b); 38 C.F.R. §§ 3.102, 4.3. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.