Citation Nr: A21020581
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 211124-200967
DATE: December 28, 2021

ORDER

An effective date of May 29, 2015, but no earlier, for erectile dysfunction (ED) is granted.

An effective date of May 29, 2015, but no earlier, for special monthly compensation (SMC) based on loss of use of a creative organ is granted.

REMANDED

Entitlement to an increased rating for prostate cancer prior to April 15, 2020, is remanded.  

FINDINGS OF FACT

1. The evidence is at least in equipoise that the Veteran filed a service connection claim for erectile dysfunction as secondary to prostate cancer and/or as a residual thereof, that was received by the RO on May 29, 2015, and that it was factually ascertainable at that time that the Veteran had erectile dysfunction as secondary to and/or as a residual of his prostate cancer.

2. The grant of SMC based on loss of creative organ is a result of his claim for erectile dysfunction, therefore it is factually ascertainable that on May 29, 2015, the Veteran had loss of use of a creative organ. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of May 29, 2015, but no earlier, for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

2. The criteria for entitlement to an effective date of May 29, 2015, but no earlier,  for special monthly compensation based on loss of use of a creative organ have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Navy from July 1966 to April 1970.

This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2021 Regional Office (RO) rating decision.

Earlier Effective Dates

Effective dates for claims seeking an increased rating for an already service-connected disability that are based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999).

In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan, 10 Vet. App. at 521. 

1. Entitlement to an earlier effective date before April 15, 2020 for service connection for erectile dysfunction.

2. Entitlement to an earlier effective date before April 15, 2020 for special monthly compensation based on loss of use of a creative organ

The Veteran seeks earlier effective dates for the grants of service connection for ED and SMC. The Board finds that the claims should be granted. 

In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either 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 it will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b).

For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999).

After a review of the evidence of record, the Board finds that an assignment of an effective date of May 29, 2015, but no earlier, for ED and SMC is warranted.

First, the Veteran submitted a claim for entitlement to service connection for erectile dysfunction as a residual of prostate cancer that was received by the RO on May 29, 2015. The Board determines that this is the date of the Veteran's service connection claim. Notably, the evidence does not indicate that he has ever filed a claim for erectile dysfunction prior to this date, nor has he asserted as much. Moreover, the Board has also determined that the record fails to show that the RO received a prior informal written communication indicative of the Veteran's desire to seek a service connection claim for erectile dysfunction. Therefore, the Board finds that for effective date purposes, this is the date of receipt for the Veteran's claim.

Secondly, the Board finds that the evidence is at least in equipoise that it was factually ascertainable that the Veteran had erectile dysfunction as secondary to, and/or as a residual of his prostate cancer and loss of use of creative organ, on May 29, 2015.  Specifically, the Veteran's credible statements are sufficient to establish that he had erectile dysfunction at the time his application was received by the RO on May 29, 2015. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Therefore, the Board finds that the evidence is in relative equipoise for the assignment of an effective date of May 29, 2015, but no earlier, for the Veteran's service-connected erectile dysfunction as secondary to his prostate cancer and SMC for loss of use of creative organ.

REASONS FOR REMAND

Inasmuch as the Board regrets further delay in the adjudication of the remaining issues on appeal, a remand is necessary to ensure full and proper development.

 

1. Entitlement to an increases rating for prostate cancer prior to April 15, 2020. 

The evidence of record reflects that the Veteran was diagnosed with prostate cancer in 2004, and submitted an initial claim seeking service connection for this disorder on June 5, 2005.  While there were a number of claims related to this disorder later on, he was ultimately granted service connection in a September 2020 rating decision, with a 20 percent rating for the period from June 7, 2005 to June 19, 2017, a 40 percent rating from June 19. 2017, to April 15, 2020, and a 100 percent rating since that date.  The Veteran disputes these ratings, arguing that a 100 percent rating is warranted prior to April 15, 2020.  

As an initial matter, although the grant of service connection was pursuant to a supplemental claim submitted to VA on April 15, 2020, the assigning of an original effective date of June 7, 2005, appears to have been based on the Veteran's status as a Nehmer class member.  Specifically, a Nehmer class member is defined as a Vietnam veteran who submitted a claim for a covered disorder prior to the date the disorder was ultimately recognized as a disorder related to toxic herbicide exposure.  See 38 C.F.R. § 3.816; see also, Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989).  Thus, the issue on appeal is not whether an earlier effective is warranted under 38 C.F.R. § 3.400, but whether an increased rating is warranted for the period prior to April 15, 2020, under 38 C.F.R. Part 4. 

In answering this question, however, some clarification is required.  Specifically, when rating prostate cancer, a 100 percent rating will be assigned and continue for 6 months following the cessation of surgery, antineoplastic chemotherapy, or other therapeutic procedure.  After this period, and there has been no local reoccurrence or metastasis, prostate cancer is then rated based on residuals as voiding dysfunction or renal dysfunction, whichever is the predominant disability.  38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528.  

Here, while the original rating decision stated that the Veteran's prostate cancer was in remission prior to 2020, the medical evidence of record reflects that he was undergoing brachytherapy (a form of internal radiation therapy) for his prostate since his initial diagnosis in 2004, and that it continued for a considerable amount of time.  Indeed, a CT scan of the abdomen from February 2018 observed the prostate with "multiple radiation seeds noted."  On the other hand, other medical evidence of record indicates that he went a radical prostatectomy at some point.  In the end, it is not clear to the Board specifically what prostate cancer treatment the Veteran received, and for how long.  While the former treatment would likely warrant a 100 percent rating under DC 7528, the latter would not.  

Therefore, a remand is required to clarify the duration of the Veteran's brachytherapy, the date of his prostatectomy (if it did in fact occur), and the appropriate ratings should be assigned pursuant to this information.  

Accordingly, the case is REMANDED for the following action:

1. Invite the Veteran to submit any additional evidence in support of his appeal.

2. The RO should take the necessary steps to ascertain the date and duration of the Veteran's brachytherapy, as well as the date of any prostatectomy that was performed since June 2005.  If such treatment falls within the definition of treatment set forth in 38 C.F.R. § 4.115b, DC 7528, the Veteran's disability ratings should be reevaluated accordingly.  

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica