Citation Nr: 21015902 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-58 568 DATE: March 18, 2021 ORDER Entitlement to an effective date prior to August 21, 2012, for the award of service connection for erectile dysfunction is denied. REMANDED Entitlement to a rating in excess of 50 percent for depressive disorder is remanded. Entitlement to a compensable rating for erectile dysfunction is remanded. FINDINGS OF FACT 1. A June 2006 rating decision denied entitlement to service connection for erectile dysfunction. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. The Veteran submitted a claim to reopen for erectile dysfunction on August 21, 2012, and between the final June 2006 rating decision and August 21, 2012, there is no unadjudicated formal or informal claim of entitlement to service connection for erectile dysfunction. CONCLUSION OF LAW 1. The June 2006 rating decision is final. 38 U.S.C. §§ 5018, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for an effective date earlier than August 21, 2012, for the award of service connection for depressive disorder are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1965 to October 1967 and from June 1984 to August 1996. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for issuance of a Statement of the Case in March 2016. Initially, the Veteran requested a Board hearing on his November 2016 VA Form 9; however, he subsequently requested to withdraw his Board hearing request in January 2021 correspondence. See 38 C.F.R. § 20.704(e). Earlier Effective Date 1. Entitlement to an effective date prior to August 21, 2012, for the award of service connection for erectile dysfunction is denied. The Veteran seek an effective date prior to August 21, 2012, for the award of service connection for erectile dysfunction. Service connection for the Veteran’s erectile dysfunction was awarded in June 2014 rating decision with an effective date of August 21, 2012, the date the VA received his claim to reopen. In general, the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of service connection is 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). The Board notes that on March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims filed on or after March 24, 2015. As the claim in this case was filed prior to this date, the amendments are not applicable in this instance. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than August 21, 2012, is not warranted for the award of service connection for erectile dysfunction. In this case, the Veteran filed his initial claim of entitlement to service connection for erectile dysfunction in February 2003, which was denied in a June 2006 rating decision. The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. See VA treatment records dated from June 20, 2016 to June 25, 2007; Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020) (the creation of VA treatment records containing new and material evidence within one year of a legacy decision may vitiate the finality of that decision, without regard to whether VA adjudicators are notified of the existence of these records within one year of the issuance of that decision. See Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020). The Veteran submitted a claim to reopen on August 21, 2012. The RO has determined, and the Board concedes August 21, 2012, as the date of claim to reopen for service connection for erectile dysfunction. The date of receipt of the claim having been established, and assuming that disability manifested prior to the date of claim, there is no mechanism by which to assign an earlier effective date a unless prior claim was filed. Therefore, the Board has also reviewed whether there is any evidence of intent to file a claim for benefits after the final June 2006 final decision and prior to August 21, 2012. In this regard, a review of the record fails to show that the RO received an intent to file a claim, a formal claim, or informal written communication indicative of the Veteran’s desire to seek service connection for his erectile dysfunction, and neither the Veteran nor his representative assert otherwise. In this regard, the Veteran’s various VA Forms 21-4138 submitted over this period of time requesting that VA associate unrelated records with his file and obtain recent treatment records regarding his psychiatric disorder can in no way be reasonably construed as an informal claim of entitlement to service connection for erectile dysfunction. To the extent the Veteran asserts that medical records can constitute a claim to support an earlier effective date for service connection, (see June 2015 Notice of Disagreement), such is only the case in limited circumstances for increased rating claims, not service connection claims. 38 C.F.R. § 3.157(b) (as in effect prior to March 24, 2015). Thus, based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for entitlement to an earlier effective date for his erectile dysfunction prior to August 21, 2012, and his appeal as to this issue is denied. REASONS FOR REMAND 2. Entitlement to a rating in excess of 50 percent for depressive disorder is remanded. 3. Entitlement to a compensable rating for erectile dysfunction is remanded. On the Veteran’s November 2016 VA Form 9, the reported worsening symptoms of his depressive disorder and erectile dysfunction disabilities, including complaints of his inability to engage in sexual activity even with medication and use of a pump and that he needs a lot of help from his friends and family because he forgets dates and appointments, none of which are currently reflected by the evidence of record. As such, updated VA examinations are needed, as the October 2013 (erectile dysfunction) and September 2015 (depressive disorder) VA examinations may no longer be reflective of the Veteran’s current level or nature of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his depressive disorder. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran’s depressive disorder. 4. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected erectile dysfunction. The entire claims file, including a copy of this remand, must be made available to the examiner, and the examiner should confirm that such records were reviewed. All findings should be reported in detail, including any functional effects associated with the Veteran’s erectile dysfunction. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Asante, Ruby 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.