Citation Nr: 21040906 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 20-15 460 DATE: July 7, 2021 ORDER An earlier effective date of August 5, 2010 for the grant of service connection for erectile dysfunction associated with type 2 diabetes mellitus is granted. REMANDED Entitlement to an effective date earlier than March 22, 2018 for the award of service connection for hypertensive kidney disease, subsequently rated as diabetic nephropathy with hypertension and hypertensive heart disease associated with type 2 diabetes mellitus, is remanded. FINDING OF FACT The Veteran's August 2010 claim for service connection for erectile dysfunction was pending in January 2019 when the Regional Office (RO) issued a rating decision granting service connection for that disability. CONCLUSION OF LAW The criteria for an earlier effective date for service connection for erectile dysfunction have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to April 1967. The Veteran testified before the undersigned Veterans Law Judge in February 2021. A copy of the transcript is of record. 1. Entitlement to an earlier effective date for the grant of service connection for erectile dysfunction. The Veteran contends that an earlier effective date is warranted for the grant of service connection for his erectile dysfunction. After review of the record, the Board finds that service connection for erectile dysfunction is warranted effective August 5, 2010. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. Historically, the Veteran filed a claim for numerous disabilities on August 5, 2010. In a statement submitted in September 2010 he expanded on his claims and reported that he believed his erectile dysfunction was related to his exposure to agent orange in service. His claim for agent orange had been listed on his August 5, 2010 claim. In a November 2010 VA examination for diabetes mellitus, it was noted that the Veteran had erectile dysfunction as a related additional diagnosis. In September 2011, the RO issued a rating decision denying service connection for erectile dysfunction. The Veteran appealed this decision to the Board and in May 2018, the Board remanded the Veteran's claim for additional development. While the claim was in Remand status, the RO, in January 2019, granted service connection for erectile dysfunction and assigned an effective date of October 9, 2018. The Veteran timely appealed the January 2019 rating decision, disagreeing with the effective date assigned because his original claim filed on August 5, 2010 was still pending. The Board notes that although the Veteran indicated in a May 2019 statement that he wanted to withdraw his appeal with respect to his erectile dysfunction, he timely reinstated his claim by January 2020, as instructed by a November 2019 letter sent to him by the RO. A February 2020 statement of the case was issued, and the Veteran perfected his appeal in March 2020. Accordingly, an effective date of August 5, 2010, the date of receipt of the Veteran's initial, pending service connection claim for erectile dysfunction is warranted. 38 C.F.R. § 3.400. As there is no prior communication of record that references the Veteran's erectile dysfunction, prior to August 5, 2010, and the Veteran does not assert otherwise, there is no basis of record for awarding an effective date prior to August 5, 2010. In conclusion, the Board finds that an earlier effective date of August 5, 2010, is warranted for the grant of service connection for erectile dysfunction. REASONS FOR REMAND 1. Entitlement to an effective date earlier than March 22, 2018 for the award of service connection for hypertensive kidney disease, subsequently rated as diabetic nephropathy with hypertension and hypertensive heart disease associated with type 2 diabetes mellitus, is remanded. While the issue was pending from a May 2018 BVA remand, the RO, in a January 2019 rating decision, granted service connection for diabetic nephropathy, effective October 9, 2018. The Veteran filed an April 2019 notice of disagreement with the effective date assigned. Although he indicated in a May 2019 statement that he wanted to withdraw his appeal with respect to his diabetic nephropathy, he reinstated his claim in January 2020, as instructed by a November 2019 letter sent to him by the RO. A subsequent February 2020 rating decision found that there was clear and unmistakable error (CUE) in the January 2019 rating decision evaluating diabetic nephropathy separately from hypertension and not granting service connection for kidney disease effective March 22, 2018. A statement of the case has still not been issued regarding this claim. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26. Thus, remand for issuance of a SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. The matters are REMANDED for the following action: Issue the Veteran a statement of the case, containing all applicable laws and regulations, on the claim of entitlement to an effective date earlier than March 22, 2018 for the award of service connection for hypertensive kidney disease, subsequently rated as diabetic nephropathy with hypertension and hypertensive heart disease associated with type 2 diabetes mellitus, and advise him of the time period in which to perfect his appeal. Only if the Veteran's appeal as to this issue is perfected within the applicable time period should this issue be returned to the Board for appellate review. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.