Citation Nr: 21014736 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-13 601 DATE: March 15, 2021 ORDER Entitlement to an earlier effective date prior to January 12, 2016 for the award of special monthly compensation (SMC) based on loss of use of a creative organ and housebound status is denied. REMANDED Entitlement to service connection for blurry vision is remanded. REFERRED A review of the record shows that the Veteran has claimed entitlement to SMC “at level R-1.” See, e.g., Veteran’s letter received August 12, 2016. Accordingly, the Board finds that the issue of entitlement to SMC under 38 U.S.C. § 1114(r)(1) was raised in the August 12, 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. A July 2013 rating decision denied service connection for erectile dysfunction; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. SMC based on loss of use of a creative organ and housebound status is effective January 12, 2016, the date that VA first received a related claim. There is no communication prior to January 12, 2016 reflecting an intent to file a claim for SMC based on loss of use of a creative organ and housebound status. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying service connection for erectile dysfunction is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 2. The criteria for entitlement to an effective date prior to January 12, 2016 for the award of SMC based on loss of use of a creative organ and housebound status have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to May 1972. The Board of Veterans’ Appeals (Board) most recently remanded this appeal in January 2018. As noted in the Board’s January 2018 decision and remand, the Veteran withdrew his request for a Board hearing in August 2017. The Board notes that the Veteran has requested that this case be advanced on the docket due to financial hardship (including past due mortgage and credit card payments). See correspondence received June 6, 2019. The motion to advance the case on the docket is granted. Please note this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to an effective date prior to January 12, 2016 for the award of SMC based on loss of use of a creative organ and housebound status is denied. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2019). An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p) (2019). SMC, by definition, is a type of increased (i.e., “special”) compensation. As such, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. Thus, determining an appropriate effective date under the governing regulations involves an analysis of the evidence to determine: (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court elaborated on the three possible effective dates that may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57, 696 (Sept. 25, 2014). SMC is a special statutory award granted in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA’s rating schedule. Claims for special monthly compensation, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C. § 1114(k) through (t) and 38 C.F.R. § 3.350 and 3.352. Entitlement to SMC will be inferred when the record indicates that it may be available, even if the Veteran does not place eligibility for this ancillary benefit at issue. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (stating that SMC “benefits are to be accorded when a [V]eteran becomes eligible without need for a separate claim.”); cf. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefits allowed by law). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, here, in order to establish an effective date earlier than January 12, 2016 for the grant of SMC for loss of use of a creative organ and housebound status, the Veteran would need to show both (1) that he met the criteria for SMC prior to January 12, 2016, and (2) that he had a prior claim for either SMC or for an increased rating that remained pending, such that an earlier date of claim would be preserved. See 38 C.F.R. § 3.400. The Veteran previously claimed entitlement to service connection for erectile dysfunction, which was denied in a July 2013 rating decision, which the Veteran did not appeal. That decision denying that benefit thus became final. In connection with that claim for service connection for erectile dysfunction, the Veteran submitted evidence indicating that he suffered from erectile dysfunction prior to that decision. Further, the Veteran was not service connected for erectile dysfunction prior to January 12, 2016. As mentioned above, the rating decision on appeal was issued in October 2016. In that decision, in addition to SMC based on loss of use of a creative organ and housebound status, the Veteran was also granted service connection for diabetes mellitus type II with erectile dysfunction associated with herbicide exposure. The effective date for those grants of SMC and service connection for diabetes mellitus type II is January 12, 2016, the date on which the Veteran submitted a claim for type II diabetes and peripheral neuropathy. After that claim, on August 12, 2016, the Veteran submitted a letter requesting that the Board grant entitlement to SMC. However, no claim for entitlement to SMC based on loss of use of a creative organ or for entitlement to service connection for erectile dysfunction was received during the period between the July 2013 denial of service connection for erectile dysfunction and the January 12, 2016 claim. Further, no claim for entitlement to SMC based on housebound status was received prior to the Veteran’s January 12, 2016. Thus, the date of the Veteran’s claim was January 12, 2016 at the earliest. With respect to entitlement to SMC based on loss of use of a creative organ and housebound status arising during the one-year period prior to the January 12, 2016 claim, the Board finds that it did not. First, for the loss of use of a creative organ, the Veteran was not service-connected for erectile dysfunction prior to January 12, 2016 and the evidence, including the Veteran’s and his wife’s statements, show that he suffered from erectile dysfunction beginning more than one year prior to the January 12, 2016 claim. As to the Veteran’s entitlement to SMC based on housebound status, the Board notes that, according to the October 2016 rating decision on appeal, the Veteran was granted this benefit “under [38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)] on account of posttraumatic stress disorder [(PTSD)] rated 100 percent and additional service-connected disability(ies) of right (dominant) shoulder rotator cuff repair with residual degenerative joint disease and rotator cuff tear, left shoulder rotator cuff repair with residual degenerative joint disease and rotator cuff tear, tinea versicolor and tinea pedis, tinnitus, diabetes mellitus type II with erectile dysfunction, independently ratable at 60 percent or more from January 12, 2016.” Prior to January 12, 2016, the Veteran did not have additional service-connected disability or disabilities, aside from his PTSD, that were independently ratable at 60 percent or more. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(i), 4.25; Rating Decision Codesheet dated August 23, 2019. Thus, entitlement to SMC under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i)(1) did not arise prior to January 1, 2016. After review of the claims file, and upon consideration of the foregoing, the Board finds (1) that the Veteran did not meet the criteria for SMC prior to January 12, 2016, and (2) that he did not have a prior claim for either SMC or for an increased rating that remained pending, such that an earlier date of claim would be preserved. See 38 C.F.R. § 3.400. Consequently, there is no legal basis for an effective date prior to January 12, 2016 for SMC based on loss of use of a creative organ and housebound status and the Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 C.F.R. § 3.400(o)(2). REASONS FOR REMAND 1. Entitlement to service connection for blurry vision is remanded. The Board remanded this claim in January 2018 for a VA opinion as to whether the Veteran’s eye disabilities were caused or aggravated by his service-connected diabetes mellitus type II. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability... in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, a medical examiner must provide a “reasoned medical explanation connecting” his observations and his conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion.”). If an examination report does not contain sufficient detail, “it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return inadequate examination report). Pursuant to the Board’s January 2018 remand, the Veteran was afforded a VA eye conditions examination in July 2018. The examiner diagnosed the Veteran with endothelial guttata of the right eye, pseudophakia of the right eye, and nuclear sclerotic cataract of the left eye. The examiner opined that none of those conditions were caused or aggravated by his diabetes mellitus type II. However, the examiner generally did not provide an adequate rationale for those opinions. For example, the examiner wrote that “[t]he veteran’s cataract in the left eye is mild and age-related along with the right eye pseudophakia; it is not attributable to the veteran’s DM II.” The examiner also stated that “[c]ataracts are known to be associated with diabetes, however this veteran’s condition is more likely than not associated with age and not diabetes” and that “[f]or the cataract diagnosis in the left eye, my opinion is that the cataract is age-related and not attributable to diabetes.” However, the examiner did not provide a rationale as a basis for that conclusion. Thus, the rationales provided for the opinions on the etiology of the pseudophakia of the right eye and nuclear sclerotic cataract of the left eye are inadequate. The claims must be remanded so an addendum opinion can be obtained with respect to the etiology of the eye disabilities. The examiner should be asked to provide a full, detailed rationale for any opinions expressed. The matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran may have received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange for the claims file to be reviewed by the VA examiner who prepared the July 2018 VA eye conditions examination and opinion reports (or a suitable substitute if that VA examiner is unavailable). If the examiner finds that another examination of the Veteran is required, one should be undertaken. The examiner is requested to opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s eye disabilities (specifically including pseudophakia of the right eye and nuclear sclerotic cataract of the left eye) have been (a) caused or (b) aggravated (i.e., worsened beyond normal progression) by the service-connected diabetes mellitus type II. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, Associate 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.