Citation Nr: 21076721 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-11 196A DATE: December 27, 2021 REMANDED Entitlement to an effective date prior to March 15, 2018 for assignment of a compensable rating for service-connected prostate cancer, to include the threshold matter of whether a Form 9, noted to have been received in September 2014, was timely, is remanded. Entitlement to an effective date prior to March 15, 2018 for special monthly compensation (SMC) based on loss of use of a creative organ, to include the threshold matter of whether a Form 9, noted to have been received in September 2014, was timely, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to May 1971. This matter is on appeal before the Board of Veterans Appeals (Board) from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, a Board hearing was held before the undersigned; a transcript of the hearing is of record. In October 2019, the Veteran filed VA Form 10182, requesting to have this appeal considered according to the new system of adjudication under the Appeals Modernization Act (AMA). However, the Board notified the Veteran in March 2020 that his appeal could not be processed under the AMA because the October 2019 VA Form 10182 was not timely. Accordingly, his appeal will continue to be considered by the Board under the legacy system pursuant to his April 2019 Form 9. REASONS FOR REMAND In a September 2012 rating decision, the RO granted service connection for prostate cancer. A 100 percent rating was assigned effective January 20, 2012. In a November 2012 rating decision, the RO proposed to decrease the rating to 0 percent based on a finding that the Veteran's cancer was in remission, he was not undergoing any therapeutic procedure for the disease, and he was not shown to have any residuals of the disease or of prostate cancer treatment. The November 2012 rating decision also granted service connection for erectile dysfunction and assigned a noncompensable rating effective January 20, 2012. In a July 2013 rating decision, the RO reduced the rating for the Veteran's service-connected prostate cancer to 0 percent (noncompensable) effective November 1, 2013. In an October 2013 notice of disagreement (NOD), the Veteran asserted that he had not been considered cured or cancer free from his prostate cancer and that he had residuals from the disease. Therefore, his ratings should remain the same until he was considered cured or in remission. He also noted that his service-connected erectile dysfunction had been aggravated by the treatment he had received for his prostate cancer. In a May 2014 statement of the case, the RO continued the denial of a compensable rating for the service-connected "prostate cancer with erectile dysfunction." In a Form 9, noted as having been received in September 2014, the Veteran attempted to perfect an appeal concerning the appropriate rating assigned for prostate cancer with erectile dysfunction. As erectile dysfunction, when subject to service connection, is not normally subject to a compensable rating but is normally subject to an accompanying award for special monthly compensation (SMC) based on loss of use of a creative organ, the Board considers this Form 9 as attempting to perfect an appeal concerning entitlement to SMC based on loss of use of a creative organ as well as one seeking a higher rating for prostate cancer. In a March 2015 letter, the RO notified the Veteran that his Form 9 was untimely since it was not received within 60 days of the May 2014 SOC or within a year of the July 2013 rating decision. In a January 2016 NOD, the Veteran appealed the determination that the Form 9 was untimely. However, the RO did not subsequently issue a statement of the case (SOC), readjudicating this matter. Whether the Veteran's Form 9 attempting to perfect an appeal concerning an increased rating for prostate cancer and entitlement to SMC based on loss of use of a creative organ bears directly on/is intertwined with the matters of entitlement to an earlier effective date for these benefits. Consequently, a remand is required so the agency of original jurisdiction (AOJ) can issue an SOC in compliance with Manlincon v. West, 12 Vet. App. 238 (1999). After issuing the SOC and allowing the Veteran the opportunity to perfect an appeal (if the readjudication in the SOC is not fully favorable to him), the AOJ should readjudicate the instant appeal for earlier effective dates. The matters are REMANDED for the following action: 1. Issue an SOC concerning the appeal as to whether the Veteran's Form 9, noted as received in September 2014, was timely. The Veteran should be given the appropriate opportunity to respond to the SOC. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration following the issuance of the SOC unless he perfects his appeal. 2. Readjudicate the claims for entitlement to an effective date prior to March 15, 2018 for assignment of a compensable rating for service-connected prostate cancer and an effective date prior to March 15, 2018 for special monthly compensation (SMC) based on loss of use of a creative organ. The Board notes that no motion for revision of the November 2013 rating decision has been filed under 38 C.F.R. § 3.105 in this case. However, the AOJ may choose, according to its own discretion, to examine whether any correctable error was made in the portion of the November 2013 rating decision that granted service connection for erectile dysfunction without an accompanying grant of special monthly compensation based on loss of use of a creative organ. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dan Brook, 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.