Citation Nr: 21072578 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 20-19 972 DATE: December 3, 2021 ORDER Entitlement to an effective date of June 22, 2011, but no earlier, for the award of service connection for erectile dysfunction (ED) is granted. Entitlement to an effective date of June 22, 2011, but no earlier, for the award of special monthly compensation (SMC) based on loss of use of creative organ is granted. FINDINGS OF FACT 1. After the Veteran's original June 22, 2011, filing, relevant service department records were associated with the claims file that at least formed in part the basis for the award for service connection for ED. 2. After the Veteran's original June 22, 2011, filing, relevant service department records were associated with the claims file that at least formed in part the basis for the award of SMC for loss of use of a creative organ. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of June 22, 2011, but no earlier, for the award of service connection for ED are met. 38 C.F.R. § 3.156(c)(1)(3). 2. The criteria for entitlement to an effective date of June 22, 2011, but no earlier, for the award of SMC based on loss of use of creative organ are met. 38 C.F.R. §§ 3.155(d)(2), 3.156(c)(1)(3). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Rating Decision by a Department of Veterans Affairs (VA) Regional Office (RO). A review of the procedural history of this claim is beneficial before addressing the merits. On June 22, 2011, the Veteran filed a VA Form 21-526, claiming entitlement to service connection for, among other things, prostate cancer due to Agent Orange exposure. In an August 2011 Veterans Claims Assistance Act Notice Response, the Veteran indicated he had no more information to submit for his claim, but he also typed in on that form that he wished for VA to "amend [his] claim for the Prostatectomy and for ED as secondary to Prostate Cancer." In a December 2011 Rating Decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for, among other things, (1) prostate cancer and prostatectomy associated with herbicide exposure and (2) ED. The denial for the former was due to unverified herbicide exposure, and denial for the latter was due to denial for the prostate issue. The Veteran did not appeal that decision. In May 2017, the Veteran submitted an intent to file a claim with VA. In June 2017, he filed his formal claim to reopen for entitlement to service connection for those two issues. The November 2017 decision now on appeal awarded service connection for each, as well as SMC for loss of use of a creative organ. The effective date for all three awards was May 27, 2017the date VA received the Veteran's intent-to-file submission. The Veteran timely appealed in his May 2018 Notice of Disagreement (NOD) the effective date for all three awards. Therein, he argued that, because a Department of Defense (DoD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand (hereafter referred to as "CHECO Report") now was declassified, it fit the definition of "relevant" service department records under 38 C.F.R. § 3.156(c)(1), entitling the Veteran to reconsideration of his previous denied claim (as opposed to reopening under 38 C.F.R. § 3.156(a)). Because that reconsideration yielded an award based on, at least partly, relevant service records not previously obtained, the Veteran believes he is entitled to an effective date as if the original decision never had become final. See 38 C.F.R. § 3.156(c)(3). In an August 2020 Decision, the Board awarded an earlier effective date of June 22, 2011, for the award of service connection for the prostate issue only. It declined to grant an earlier effective date either for ED or SMC. In so deciding the former, the Board found that the award for the Veteran's prostate cancer was based, at least partly, on an August 2017 affidavit from the Veteran, detailing his exposure to herbicides, as well as the DoD's declassified CHECO Report, which the Board found implicitly was associated with the claims file. Aug. 21, 2020, Board Decision at 1314. In declining to award earlier effective dates for ED or SMC, the Board noted that ED was granted as secondary to the Veteran's prostate cancer and that SMC was awarded based on the ED award. Relying on Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008), it explained that the operative analysis was to see if there was any intervening claim filed between the June 2011 filing and the May 2017, which, the Board determined, there was not. Id. at 1618. The Veteran appealed the Board's Decision for these two issues to the United States Court of Appeals for Veteran's Claims (CAVC). The Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a May 21, 2021, Joint Motion for Partial Remand (JMPR). The Parties agreed that the Board erred by failing to provide a sufficient analysis as to whether 38 C.F.R. § 3.156(c)(1) was for application as to these issues. JMPR at 34. The Parties also agreed that the issue of SMC is inextricably intertwined to the ED claim. Id. at 4. By a June 7, 2021, Order, the CAVC adopted the Parties' JMPR. Thus, with respect to these issues, the August 2020 Board Decision has been vacated, and these issues again are before the Board. In his September 2021 Post-Remand Brief ("Brief"), Counsel argues that the Board erred in relying on Ellington and avers that the Veteran did not need to file another claim because "its relationship to prostate cancer did, in this case, serve as the basis for an earlier effective date." Brief at 2. He makes a similar argument for SMC and its connection to ED. Id. at 3. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant, official service records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). This exception, however, does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. Id. at (c)(3). Upon reevaluation, the Board finds that the Veteran is entitled to an effective date of June 22, 2011, but no earlier, for both his ED and SMC. The Board previously acknowledged that the award of service connection for the Veteran's prostate cancer/prostatectomy was owed an effective date of June 22, 2011 pursuant to 38 C.F.R. § 3.156(c); however, it now recognizes that it was too restrictive in its earlier analysis for the ED and SMC issues. Its finding of the CHECO report's relevancy and ultimate award of an earlier effective date for the prostate issue had appreciable downstream effects. While the exposure to herbicides did not directly cause the Veteran's ED, it did cause his prostate cancer, which, in turn, necessitated surgery. The November 2017 VA prostate cancer examination report clearly shows that the Veteran has "had permanent [ED] since his surgery in 2002." There is no other way to read this statement other than that the Veteran's ED is a direct residual of his cancer and necessary surgery. Due to the Veteran's ED, he also was awarded SMC. Unable to divest the issue of SMC from ED and ED from the prostate cancer, it would be disingenuous to say that the award for the prostate cancer issue was based, at least, in part on the relevant CHECO Report, but that the CHECO Report was not at all at least a basis for the grants of ED and SMC. As stated, those benefits flowed downstream from the prostate issue. Thus, there is a clear, logical chain from the CHECO Report's relevancy all the way to the issue of entitlement to SMC. The effective date for the award of all three, thus, must mirror one another. Therefore, for both the award of service connection for ED and entitlement to SMC for loss of use of a creative organ, the Veteran is awarded an effective date of June 22, 2011. See 38 C.F.R. § 3.156(c)(1)(3). (Continued on the next page) As an ancillary point, the Board notes that, once a complete a claim is filed, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication, to include SMC, without the need for a separate application. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); 38 C.F.R. § 3.155(d)(2). Thus, although no original claim for SMC ever was filed, the Veteran is entitled to it as of the day entitlement is met without the need to file for such benefits. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.