Citation Nr: A21017261 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210308-142811 DATE: October 26, 2021 ORDER Entitlement to an effective date prior to February 20, 2020 for the assignment of special monthly compensation (SMC) based on the loss of use of a creative organ is denied. FINDING OF FACT On February 20, 2020, the Agency of Original Jurisdiction (AOJ) received from the Veteran an initial claim for erectile dysfunction, loss of use of a creative organ, secondary to posttraumatic stress disorder (PTSD) symptoms. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 20, 2020 for the assignment of SMC based on the loss of use of a creative organ have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1980 to August 1984. His claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2021 Department of Veterans Affairs (VA) rating decision granting service connection for erectile dysfunction and assigning the Veteran SMC based on the loss of use of a creative organ, effective February 20, 2020. Entitlement to an effective date prior to February 20, 2020 for the assignment of SMC based on the loss of use of a creative organ On February 20, 2020, the AOJ received from the Veteran an initial claim for ED, loss of use of a creative organ. In a February 2021 rating decision, the AOJ granted this claim for SMC based on the loss of use of a creative organ, effective February 20, 2020, the date of receipt of the claim for ED. The Veteran now seeks an earlier effective date for the assignment of SMC. Generally, the effective date of an award of a claim is the date of receipt of that claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The term "date entitlement arose" is not defined in the current statue or any regulation. However, the Court has interpreted the phrase as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). SMC based on the loss of use of a creative organ is payable pursuant to 38 U.S.C. § 1114(k) when there is an anatomical loss or loss of use of one or more creative organs due to service-connected disability. SMC is compensation payable "in addition to the basic rate of compensation otherwise payable on the basis of degree of disability." 38 C.F.R. § 3.350(a). Therefore, SMC is contingent upon a grant of service connection for the creative organ that is no longer of use, and generally, such loss of use cannot precede the effective date of the grant of service connection for the underlying erectile disability. The question here is thus whether, prior to February 20, 2020, the Veteran had a service-connected anatomical loss of use of a creative organ. The Veteran claims that he should be assigned an effective date of 2005 for the SMC because that is the year doctors first prescribed him the psychiatric medication that caused his erectile dysfunction. He contends that the medication was prescribed for his service-connected PTSD. Indeed, in the February 2021 rating decision, the AOJ related the Veteran's ED to the anti-depressants he was taking for his service-connected psychiatric disability, now characterized to include bipolar disorder and methamphetamine dependence in new remission, and service connected him for the ED prior to assigning the SMC. According to the record, prior to February 20, 2020, as early as 2008, the Veteran was diagnosed with ED, but he did not file a claim for service connection for the ED. While the Veteran had ED prior to February 20, 2020, the presence of that condition, alone, does not help the Veteran's claim. An ED diagnosis does not establish intent on the Veteran's part to seek service connection for that disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[M]ere receipt of medical records cannot be construed as an informal claim."); Brannon v. West, 12 Vet. App. 32, 35 (1998) ("[T]he Board is not required to conjure up issues that were not raised by the appellant."). Prior to February 20, 2020, in a rating decision dated August 2008, the Veteran was service connected for PTSD, which the evidence now shows caused the ED that then existed. Arguably, as the Veteran filed an increased rating for the PTSD in November 2009, after the ED was diagnosed and the PTSD service connected, the effective date of the SMC should correspond to the receipt date of that increased rating claim. However, at that time, the Veteran did not allege, and there was no medical opinion of record finding, that the medication taken for the PTSD caused the ED. In other words, the Veteran's entitlement to SMC based on the PTSD-related ED had not yet arisen. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. As noted above, generally, the effective date of an award of a claim is the date of receipt of that claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran did not file a claim for ED or loss of use of a creative organ prior to February 20, 2020, the effective date now assigned the SMC, and although he filed a claim for an increased rating for his PTSD in 2009, at that time, his entitlement to SMC had not yet arisen. More specifically, while he then had an anatomical loss of use of a creative organ, such loss had not yet been related to his service-connected PTSD. As such entitlement arose after the Veteran filed his February 20, 2020 claim, the criteria for entitlement to an effective date prior to February 20, 2020 for the assignment of SMC based on the loss of use of a creative organ are not met. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. N. 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.