Citation Nr: A21020526 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190614-34934 DATE: December 27, 2021 ORDER Entitlement to an earlier effective date than May 4, 2009, for an award of service connection for benign prostatic hypertrophy (BPH) is denied. Entitlement to an earlier effective date than May 4, 2009, for an award of special monthly compensation (SMC) based on housebound status is denied. FINDINGS OF FACT 1. The record evidence shows that the earliest claim of service connection for BPH was received by VA on May 4, 2009. 2. The record evidence shows that the June 2018 rating decision correctly found clear and unmistakable error (CUE) in a June 2015 rating decision which established April 23, 2009, as the effective date for an award of service connection for BPH. 3. The record evidence shows that May 4, 2009, is the correct effective date for an award of service connection for BPH. 4. The record evidence shows that SMC based on housebound status was established with the award of service connection for BPH, so the effective dates for both benefits are inextricably intertwined; due to CUE in the June 2015 rating decision, the RO appropriately corrected the effective date to May 4, 2009, for SMC. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date than May 4, 2009, for an award of service connection for BPH have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.104, 3.105, 3.155, 3.400. 2. The criteria for entitlement to an earlier effective date than May 4, 2009, for an award of SMC based on housebound status have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.104, 3.105, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to August 1978. This appeal to the Board of Veterans' Appeals (Board) originates from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that it previously decision granted service connection for BPH in June 2015. A rating decision issued that same month by the RO implemented the Board's decision granting service connection for BPH and assigned an effective date of April 23, 2009. The June 2015 rating decision also granted SMC based on housebound status effective April 23, 2009. In July and October 2017, the Veteran filed increased rating claims for BPH which the RO denied in September and November 2017 rating decisions. In January 2018, he filed a notice of disagreement (NOD) with the denial of an increased rating and the effective date for BPH. The NOD was followed by the June 2018 rating decision which found clear and unmistakable error (CUE) in the June 2015 rating decision that established an April 23, 2009 effective date for the grant of service connection for BPH. Since the effective date for SMC based on being housebound was inextricably intertwined with the effective date for the grant of service connection for BPH, the June 2018 decision also found CUE in the effective date for SMC. Both effective dates were changed to May 4, 2009. The June 2018 rating decision and the decisions which preceded it were issued under the Legacy system. In the June 2019, the Veteran filed an NOD using VA Form 10182, which is under the Appeals Modernization Act (AMA) and is a new system for processing claims. The AMA became effective February 19, 2019, and the Veteran elected the Direct Review docket. This election option does not include a hearing and only allows the Board to consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In January 2020, the Board denied the claims for an earlier effective date than May 4, 2009 for an award of service connection for BPH and entitlement to SMC based on housebound status. The Veteran appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 memorandum decision, the Court, in pertinent part, set aside the two earlier effective date claims and remanded them to the Board. Effective Dates 1. Entitlement to an earlier effective date than May 24, 2009, for an award of service connection for BPH The Veteran's contention is that he is entitled to an earlier effective date than May 24, 2009, for an award of service connection for BPH based on the holding in Nehmer. See Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991). The record shows that he served in Vietnam from September 1971 to March 1972. The retroactive provisions of 38 C.F.R. § 3.816 pursuant to Nehmer are not applicable here because BPH is not among the herbicide agent diseases enumerated at 38 C.F.R. § 3.309(e) which is required by 38 C.F.R. §§ 3.816(b)(1)(i) and 3.816(b)(2). Thus, an earlier effective date cannot be assigned on this basis. Since the June 2015 rating decision which established the effective date for service connection for BPH was final, it can only be changed if there was CUE in that decision. The RO found this to be the case in the currently appealed June 2018 rating decision when it granted the Veteran's earlier effective date claims. The Court's May 2021 Memorandum Decision found that the Board was obligated to discuss the RO's finding of CUE in the June 2015 rating decision which resulted in the effective date being changed from April 23, 2009 to May 4, 2009. The Board finds that the RO correctly determined that there was CUE in the June 2015 rating decision. The evidence does not appear to be in dispute. There is no assertion that the correct facts, as they were known at the time of the June 2015 rating decision, were not considered. The claim received on April 23, 2009 only noted five disorders, none of which was BPH. On May 4, 2009, the RO received an informal claim for service connection for multiple disorders which included a prostate disorder. This was the first document the Veteran submitted which referenced BPH. In other words, the May 4, 2009, informal claim is the earliest dated document which could be construed as a claim for benefits. The Board notes here that the effective date for compensation based on an original claim is 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. With respect to the allegation of CUE in the June 2015 rating decision, the Board finds that the RO incorrectly applied the law when it established an effective date of April 23, 2009 instead of May 4, 2009, which was the date the claim was received. The Board also finds that this error in assigning an effective date of April 23, 2009, in the June 2015 rating decision also is undebatable. The April 23, 2009 informal claim only included the following disabilities: obstructive sleep apnea, a bronchial disorder with asthma, peripheral artery disease in the upper extremities, peripheral artery disease in the lower extremities, and supraventricular tachycardia. The Veteran did not mention his prostate, so even construed liberally, a claim cannot be raised for a prostate disability that was not mentioned or referenced in any way in the April 23, 2009, informal claim. The Board next finds that final element to establish CUE in the June 2015 rating decision also was met since the error manifestly changed the outcome. In this regard, the Board notes that the RO's error in the June 2015 rating decision resulted in an earlier effective date for disability benefits that the Veteran would not have received and was not entitled to receive but for the RO's error. For these reasons, there was CUE in the June 2015 rating decision and the RO appropriately corrected the effective date for the award of service connection for BPH to reflect the date that the claim was received on May 4, 2009. (The Board notes parenthetically that, from a practical standpoint, while the corrected effective date was adverse in the sense that it was changed to a later date, it did not result in any loss of compensation, since there was no attempt to recoup any compensation the Veteran received due to VA's error.) On appeal, the Veteran also asserted that effective date for an award of service connection for BPH should go back to 2003 based on the date he was diagnosed with diabetes mellitus. As noted, while there was CUE in the June 2015 rating decision, the correction led to an effective date which coincides with the date that the initial claim was received. There is no legal basis for the Board to consider an effective date prior to May 4, 2009, for an award of service connection for BPH. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than May 4, 2009, for an award of service connection for BPH. In summary, the Board finds that the criteria for an earlier effective date than May 4, 2009, for an award of service connection for BPH have not been met. 2. Entitlement to an earlier effective date than May 4, 2009, for an award of SMC based on housebound status The effective date for an award of SMC based housebound status is inextricably intertwined with the effective date for the award of service connection for BPH because SMC due to housebound status was established with the grant of service connection for BPH. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). This finding was acknowledged in the Court's May 2021 Memorandum Decision which remanded these claims to the Board. Consequently, when the RO found CUE in the June 2015 rating decision and corrected the effective date for BPH in the currently appealed June 2018 rating decision, it also corrected the effective date for an award of SMC based housebound status. Consequently, the reasons why an earlier effective date cannot be assigned for SMC based on housebound status essentially mimic the reasons why the Board denied an earlier effective date for an award of service connection for BPH. In other words, the Board finds that the existence of CUE in the effective date for an award of service connection for BPH also meant there was CUE in the effective date for an award of SMC based on housebound status. The SMC award considered all of the Veteran's service-connected disabilities, including posttraumatic stress disorder, diabetes mellitus, diabetic bilateral lower extremity peripheral neuropathy, and BPH. Significantly, the Board notes that the criteria for SMC based on housebound status were not met until service connection for BPH was established. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than May 4, 2009, for an award of SMC based on housebound status. In summary, the Board finds that the criteria for an earlier effective date than May 4, 2009, for an award of SMC based on housebound status have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.