Citation Nr: 21014251 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-45 490 DATE: March 11, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for hearing loss is denied. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for tinnitus is denied. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for prostate cancer with urinary incontinence and erectile dysfunction is denied. Entitlement to an effective date earlier than December 23, 2015 for special monthly compensation (SMC) based on loss of use of a creative organ is denied. REMANDED Entitlement to an initial rating in excess of 60 percent for residuals of prostate cancer is remanded. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected tinnitus is assigned the maximum rating authorized under Diagnostic Code 6260. 2. VA received the Veteran’s initial claim for service connection for hearing loss and tinnitus on December 23, 2015. 3. The Veteran did not file a claim of entitlement to service connection for hearing loss or tinnitus or a claim that can be reasonably construed as a claim for service connection for such disabilities, prior to December 23, 2015. 4. In a February 2008 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for prostate cancer. The Veteran did not appeal the decision and new and material evidence was not received within one year of its issuance. 5. On December 23, 2015, the Veteran requested that his prostate cancer claim be reopened. In an October 2016 rating decision, the RO granted service connection for prostate cancer with urinary incontinence and erectile dysfunction, and assigned an effective date of December 23, 2015, the date of claim to reopen. 6. The Veteran’s SMC for loss of use of creative organ is based upon his service-connected prostate cancer with urinary incontinence and erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.3, 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria for an effective date earlier than December 23, 2015, for the grant of service connection for hearing loss are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date earlier than December 23, 2015, for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an effective date earlier than December 23, 2015, for the grant of service connection for residuals of prostate cancer with urinary incontinence and erectile dysfunction are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.400(r). 5. The criteria for an effective date earlier than December 23, 2015, for the grant of SMC based on loss of use of a creative organ are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1968 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2016 and January 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned. 1. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. The Veteran seeks an increased rating for his service-connected tinnitus, for which he is currently receiving a 10 percent rating under DC 6260. This in this only applicable diagnostic code for tinnitus, which allows for a single 10 percent disability rating for tinnitus regardless of whether it is unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); see also Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). No higher disability rating is available under the Rating Schedule. Accordingly, as there is no legal basis upon which to award separate schedular evaluations for tinnitus in each ear or otherwise increase the Veteran’s total compensation for his service-connected tinnitus, his claim for an increased rating must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for hearing loss is denied. 3. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for tinnitus is denied. The Veteran generally asserts that his service-connected tinnitus and hearing loss are entitled to an effective date earlier than December 23, 2015, as his disabilities began prior to that date. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 135 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records do not constitute informal claims when service connection has not yet been established for the condition. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). While the Veteran may have been diagnosed with tinnitus and hearing loss prior to December 23, 2015, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). As the date the Veteran’s claim was received on December 23, 2015, is later than the date entitlement arose, the effective date of service connection must be December 23, 2015. The Veteran does not assert that he filed a claim for service connection for hearing loss or tinnitus that was previously denied. See September 2020 Board Hearing at 7. Further, there is nothing in the record to suggest that the Veteran communicated an intent to claim service connection for tinnitus or hearing loss prior to December 23, 2015. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert, supra. Consequently, the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply, and an effective date prior to December 23, 2015 is not warranted. 38 C.F.R. § 3.400. 4. Entitlement to an effective date earlier than December 23, 2015, for the award of service connection for residuals of prostate cancer with urinary incontinence and erectile dysfunction is denied. The Veteran was diagnosed with prostate cancer in October 2004, with urinary incontinence and erectile dysfunction. He underwent a robotic laparoscopic prostatectomy in January 2005. A claim for prostate cancer with urinary incontinence and erectile dysfunction was initially filed by the Veteran in November 2006. That claim was denied by the RO in February 2008 on the grounds that there was no evidence of prostate cancer in service treatment records and on the grounds that there was no entitlement on a presumptive basis because the Veteran did not serve in Vietnam. The Veteran did not appeal that decision, and new and material evidence was not received within the one-year appeal period. Accordingly, the February 2008 rating decision became final. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran did not communicate with VA again regarding his prostate cancer claim until December 23, 2015; at which time he advised that he had served near the perimeter of Udorn Royal Thai Air Force Base. See December 2015 correspondence. In an October 2016 rating decision, the RO granted service connection for prostate cancer with urinary incontinence and erectile dysfunction under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309, effective December 23, 2015, the date VA received the Veteran’s petition to reopen the claim. The Veteran seeks an earlier effective date; however, the Board finds that an earlier effective date is not warranted. An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.109, 3.156, 3.157, 3.160(e), 3.400(r). Final rating decisions can only be revised through a successful claim of clear and unmistakable error (CUE). See 38 C.F.R. § 3.105; see also Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002). To assert a valid claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Simply claiming CUE on the basis that the previous decision improperly evaluated the evidence can never satisfy the stringent definition of CUE. Id. at 44. As neither the Veteran nor his representative have alleged any specific error in the aforementioned final rating decision, the Board finds that a claim for CUE has not been raised. Should the Veteran and his representative wish to file such a claim, they should do so with specificity at the RO. The evidence does not reflect that a claim to reopen his prostate cancer claim was received between the February 2008 final rating decision and December 23, 2015, nor does the Veteran allege otherwise. Absent an earlier claim for service connection for prostate cancer, the Board concludes that the earliest effective date that is warranted is the currently assigned date of December 23, 2015, which is the earliest effective date allowed by law. Although the Board is sympathetic to the Veteran’s claim, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104(c). There is no legal basis by which to assign an effective date earlier than December 23, 2015, for the grant of service connection for prostate cancer with urinary incontinence and erectile dysfunction. The claim must therefore be denied. 5. Entitlement to an effective date earlier than December 23, 2015, for SMC based on loss of use of a creative organ is denied. SMC based on loss of use of creative organ was granted in the October 2016 rating decision, effective December 23, 2015, the date service connection for prostate cancer with erectile dysfunction was granted. VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). The Board emphasizes that SMC is compensation payable “in addition to the basic rate of compensation otherwise payable on the basis of degree of disability.” 38 C.F.R. § 3.350(a). It follows that SMC based on loss of use of a creative organ generally cannot precede the effective date of the grant of service connection for the underlying residuals of prostate cancer with erectile dysfunction. As such, since the determination above has not awarded an effective date earlier than December 23, 2015, for the grant of service connection for prostate cancer with erectile dysfunction, an effective date prior to December 23, 2015, for the grant of SMC for loss of use of a creative organ is not warranted. REASONS FOR REMAND 6. Entitlement to an initial rating in excess of 60 percent for residuals of prostate cancer is remanded. The Veteran testified that his residuals of prostate cancer symptoms have worsened since his most recent VA examination in August 2016. See September 2020 Board Hearing at 8. As such, the Board finds that a new examination should be provided in order to assess the current nature and severity of his residuals of prostate cancer. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 7. Entitlement to an initial compensable rating for hearing loss is remanded. The Veteran testified that his hearing loss has worsened since his most recent VA examination in January 2017. See September 2020 Board Hearing at 13. As such, the Board finds that a new examination should be provided in order to assess the current nature and severity of his hearing loss. See Snuffer, supra. Additionally, the Veteran has indicated that he has undergone audiology testing in September and December 2020 at Dingell VA Medical Center (VAMC). See December 2020 Correspondence. These records and any outstanding treatment records should be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include audiological audiograms dated in September and December 2020 from Dingell VAMC. If it is not clear that the word recognition testing was conducted using the Maryland CNC test, the AOJ should seek clarification from the facility/audiologist as to whether the Maryland CNC was utilized. If the requested records are not available, the Veteran should be notified. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include from Dr. E.S.. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected prostate cancer. The examiner is specifically asked to address the following: (a) discuss in detail all symptomatology and treatment related to the Veteran’s residuals of prostate cancer; (b) the current severity and frequency of the Veteran’s voiding dysfunction and urinary frequency; and (c) report all signs and symptoms necessary for evaluation of the Veteran’s erectile dysfunction, including whether there is any deformity of the penis. See September 2020 Board Hearing at 4. Please provide a complete rationale based on medical principles to support any conclusions reached. 4. Schedule the Veteran for a VA audiological examination to determine the current severity of his hearing loss. The claims file should be reviewed by the examiner. All results should be reported in detail, to include all functional effects and any occupational impairment associated with the Veteran’s hearing loss. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.