Citation Nr: 21073556 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 20-10 001A DATE: December 9, 2021 ORDER Entitlement to an effective date earlier than February 5, 2018 for the grant of special monthly compensation based on loss of use of a creative organ is denied. FINDINGS OF FACT 1. The Veteran's claim for entitlement to special monthly compensation based on loss of use of a creative organ was denied in an April 2010 rating decision and was not timely appealed to the Board. 2. The Veteran filed a formal claim to reopen his previously denied claim of entitlement to special monthly compensation that was received by VA on February 5, 2018. 3. Prior to February 5, 2018, there was no valid formal claim, informal claim, or written intent to file a claim to reopen the previously denied claim of entitlement to special monthly compensation following the April 2010 denial. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 5, 2018 for entitlement to special monthly compensation based on loss of use of a creative organ have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active naval service from November 1984 to May 1990. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Effective Date According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 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. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions regarding service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. See 38 C.F.R. § 3.1(p). The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. 38 C.F.R. §§ 3.151, 3.155. The United States Court of Appeals for the Federal Circuit recently held that the creation of VA treatment records containing new and material evidence within one year of a legacy decision may vitiate the finality of that decision, without regard to whether VA adjudicators are notified of the existence of these records within one year of the issuance of that decision. See Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an effective date earlier than February 5, 2018 for the grant of special monthly compensation based on loss of use of a creative organ The Veteran asserts that an effective date earlier than February 5, 2018 is warranted for the grant of special monthly compensation. Specifically, in his November 2021 Informal Hearing Presentation, the Veteran contends that the grant of special monthly compensation should be awarded April 29, 2009 which is the effective date of the grant of service connection for erectile dysfunction. The basic facts in this case are not in dispute. The Veteran was initially denied entitlement to special monthly compensation in an April 2010 rating decision and the Veteran was notified of such in a subsequent April 2010 letter. In that same rating decision, the RO granted entitlement to service connection for erectile dysfunction and assigned an effective date of April 29, 2009. The Veteran filed a notice of disagreement with regard to the claim for entitlement to special monthly compensation, which was received by VA in August 2010, within the statutory one-year limit. The RO issued a statement of the case in November 2010. The Board notes that if a notice of disagreement is filed by the claimant, then the RO must issue a statement of the case. 38 U.S.C. § 7105. After a statement of the case has been furnished, appellate review of an RO's rating decision is satisfied by the claimant filing a timely Substantive Appeal via the VA Form 9, "Appeal to the Board of Veterans' Appeals." 38 C.F.R. § 20.200. If the claimant's Substantive Appeal is not received by the RO within 60 days from the date that the statement of the case is mailed or within the remainder of the one-year period from the date that the notification of the rating decision was mailed, then the underlying rating decision "shall become final and the claim will not thereafter be reopened or allowed," except as otherwise provided in applicable statutes and regulations. 38 U.S.C. § 5104, 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.302(a), 20.1103. See also Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007) ([a] regional office decision becomes final only after the period for appeal has run). However, the agency of original jurisdiction may close the appeal without notice to the Veteran or her representative for failure to respond to the statement of the case. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 19.32. Here, the Veteran failed to submit a substantive appeal to the Board via a timely VA Form 9 substantive appeal following the issuance of the statement of the case. Therefore, that April 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Moreover, the Board notes that relevant service records were not received at any time after the issuance of the April 2010 rating decision. Further, no VA treatment records were created within one year of the rating decision relevant to the Veteran's erectile dysfunction or loss of a creative organ. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, supra. Therefore, the April 2010 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Next, the Veteran submitted a VA Form 21-4138 in December 2017 indicating that he wished to reopen the claim for entitlement to special monthly compensation. The Board here notes that this date is after March 24, 2015, the effective date of the regulation requiring submission of a claim on a prescribed claim form, or an intent to file a claim, also submitted on the appropriate form. 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). On January 18, 2018, in accordance with regulation, VA mailed the Veteran a notice of required claim form and instructions on how to file a claim on the standard form. The Veteran subsequently filed a claim for entitlement to special monthly compensation on a VA Form 21-526EZ, which was received by VA on February 5, 2018. The claim was granted in an April 2018 rating decision, effective February 5, 2018. As mentioned above, the law no longer allows for informal claims. Instead, as explained above, a claimant may file an intent to file a claim form that can act as a placeholder for the effective date of a completed claim form received within a year. See 38 C.F.R. § 3.155(b). In order to be treated as a written intent to file a claim, the correspondence must be made on the VA intent to file a claim form as prescribed by the Secretary. 38 C.F.R. § 3.155(b)(1)(ii). The Veteran's December 2017 correspondence was filed on VA Statement in Support of Claim Form, not the prescribed Intent to File a Claim Form that is required. Thus, the December 2017 correspondence acted only as a request for an application for benefits; it could not be an actual placeholder for the effective date of his claim. See 38 C.F.R. § 3.155 (a), (b). The Veteran has not identified nor has the Board's review of the record disclosed a formal or informal claim for entitlement to special monthly compensation prior to February 5, 2018 and after the RO's April 2010 final decision. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 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 intent to file a claim for VA benefits). The evidence provides no basis for an award of special monthly compensation prior to February 5, 2018. While, under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court of Appeals for Veterans Claims (Court) has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, any record of VA treatment for the Veteran's erectile dysfunction during this period also cannot constitute a request to reopen a claim for entitlement to special monthly compensation based on loss of use of a creative organ. (Continued on the next page) Based on the analysis above and after reviewing the totality of the evidence, the Board finds that the effective date for the grant of entitlement to special monthly compensation has been appropriately assigned as the date of claim to reopen after the final disallowance of the claim, i.e., April 2010. See 38 C.F.R. § 3.400(r). The Board is precluded by law from assigning effective dates prior to February 5, 2018 for the grant of entitlement to special monthly compensation. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to February 5, 2018 for the award of special monthly compensation, and, as such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.