Citation Nr: 21040665 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-63 974 DATE: July 6, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for status-post exploration of right testis and cord for varices and spermatocele with excision of right testicle and residual scar is denied. Entitlement to an effective date prior to October 7, 2003, for special monthly compensation (SMC) based on loss of use of creative organ is denied. FINDINGS OF FACT 1. The Veteran failed to report for a January 2020 examination with respect to his increased rating claim for status-post exploration of right testis and cord for varices and spermatocele with excision of right testicle and residual scar. The Veteran has not provided good cause for missing this examination. 2. VA did not receive a claim for compensation, for which SMC based on loss of use of a creative organ would have been applicable, prior to October 7, 2003 (after previous final denial). CONCLUSIONS OF LAW 1. The claim of entitlement to an evaluation in excess of 10 percent for status-post exploration of right testis and cord for varices and spermatocele with excision of right testicle and residual scar lacks legal merit due to the Veteran's failure to report for a necessary VA examination. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.655 (b). 2. The criteria for an effective date prior to October 7, 2003, for special monthly compensation (SMC) based on loss of use of creative organ have not been met have not been 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 from April 1983 to February 1988. This matter was previously remanded by the Board in January 2019 for evidentiary development. 1. Entitlement to an evaluation in excess of 10 percent for status-post exploration of right testis and cord for varices and spermatocele with excision of right testicle and residual scar Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. "When the examination was scheduled in conjunction with any other original claim, a reopened claim...or a claim for increase, the claim shall be denied." 38 C.F.R. § 3.655 (b). The wording of section 3.655 (b) was amended by the Appeals Modernization Act, but with respect to a claim for increase, there is no material change. The Veteran filed his increased rating claim on November 30, 2012. As the January 2019 Board Remand made clear, the medical evidence of record is conflicting as to whether the Veteran's right testicle has been removed or is atrophied. Such information is critical to properly evaluating the service-connected disorder under the potentially applicable Diagnostic Codes, 7523 or 7524. The Board determined that an examination was necessary to properly adjudicate the increased rating claim. The Veteran was scheduled for a January 2020 VA examination. He failed to attend. As the Board Remand notes, the Veteran has previously indicated that he would not attend any future VA examinations. As the Veteran failed to attend this VA examination without good cause and the examination was necessary to properly adjudicate the increased rating claim, the claim is denied. 38 C.F.R. § 3.655. The duty to assist is not a one-way street or a blind alley. 2. Entitlement to an effective date prior to October 7, 2003, for special monthly compensation (SMC) based on loss of use of creative organ The Veteran seeks an effective date prior to October 7, 2003, for special monthly compensation (SMC) based on loss of use of creative organ under the provisions of 38 C.F.R. § 3.350 (a)(1). The general rule regarding effective dates is found at 38 U.S.C. § 5110 (a). The Board notes that the rule has recently changed in accordance with the Appeals Modernization Act. Previously, the rule was as follows: Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. It now reads as: Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Importantly, the change in the law or language of the statute does not change the outcome of the decision. The Board will analyze the Veteran's claim under the old law, as this is a legacy appeal. The Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation. Thus, claims for earlier effective date for SMC are treated analogously to claims for earlier effective dates for increased ratings. However, a separate claim is not necessarily needed for ancillary benefits such as SMC. See 38 C.F.R. § 3.155 (d)(2) (2018) (noting that VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as part of the adjudication). An exception to the general rule for increased rating claims applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). During the pendency of the appeal the definition of what constitutes a valid claim has changed. However, the amendment only applies to claims or appeals filed on or after March 24, 2015. As such, it is not applicable here. Under the law prior to the amendment, a claim was defined as 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). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). A February 2000 administrative decision denied service connection for anatomical loss of the right testicle and SMC for the loss of use of a creative organ. The Veteran appealed this decision, resulting in the issuance of a May 2001 Statement of the Case (SOC). The Veteran failed to perfect an appeal with respect to the SOC, and as a result, the February 2000 decision became final. The Veteran filed a subsequent October 7, 2003, compensation claim for a left testicle condition and for SMC for loss of use of a creative organ. After continually pursuing this claim, the AOJ granted entitlement to SMC in a July 2010 rating decision. This rating decision cites a May 2010 VA examination report which found that the Veteran's right testicle was absent or had been removed. This was a departure from previous medical examinations, including clinical evaluation upon separation, which indicated that the Veteran's right testicle had atrophied, as opposed to having been removed during service. Subsequent medical evidence, including a March 2015 VA examination, indicates that the Veteran's right testicle had not been removed and was of size 1/3 or less than normal. As noted above, the Veteran failed to appear at the scheduled January 2020 VA examination to clarify if his right testicle was atrophied or had been removed. The Board need not make a finding with respect to that question to adjudicate the effective date claim. The February 2000 decision is final. There is no informal or formal claim for SMC or a compensation claim for which SMC for loss of use of a creative organ could be an ancillary benefit after the February 2000 decision and prior to the current October 7, 2003 effective date. There is no evidence of loss of a creative organ within one year of the October 7, 2003 claim consistent with section 3.350 (a)(1). This includes evidence of atrophy reducing the testicle to one-third or less diameter than the normal paired testicle, or to one-half or less normal diameter with alteration of consistency. In the February 2000 decision, the RO denied service connection for SMC and a right testicle condition for which SMC could have been an ancillary benefit. The Veteran was notified of this denial, submitted a notice of disagreement, but failed to perfect the appeal after issuance of a Statement of the Case. The decision was, therefore, final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. A review of the record does not reveal an informal or formal compensation claim for a condition for which SMC for loss of use of a creative organ could be an ancillary benefit or a specific claim for SMC prior to October 7, 2003. As a result, an effective date prior to October 7, 2003 is not warranted, as this is the date of the claim for increase. 38 U.S.C. § 5110 (a). With respect to the Board's explanation in the January 2019 Remand that medical clarification as to whether the Veteran's right testicle had actually been removed or was atrophied may render SMC moot, the Board makes no further determination. Under the applicable laws and regulations, the Board is unable to grant an earlier effective date for SMC for loss of a creative organ. The Board is bound by the statutes enacted by Congress and as a result of their application, must find that an earlier effective date must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.