Citation Nr: A25035459 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210521-161952 DATE: April 17, 2025 ORDER Entitlement to an effective date prior to May 22, 2020, for the 70 percent evaluation for unspecified depressive disorder is denied. Entitlement to an effective date prior to April 10, 2020, for the 60 percent evaluation for gastroesophageal reflux disease (GERD) with esophagitis is denied. Entitlement to an effective date prior to January 13, 2020, for the grant of service connection for erectile dysfunction is denied. Entitlement to an effective date prior to January 13, 2020, for the grant of entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is denied. FINDINGS OF FACT 1. On March 21, 2019, the Veteran received notice that he was granted service connection for an unspecified depressive disorder evaluated at 30 percent. The Veteran did not file a notice of disagreement, and the rating became final. 2. On May 22, 2020, greater than one year after the date of the prior rating decision, the Veteran filed a new claim for an increased rating for his unspecified depressive disorder. 3. An increase in disability of the Veteran's service-connected unspecified depressive disorder is not factually ascertainable in the one-year period prior to May 22, 2020. 4. On February 21, 2019, the Veteran received notice that he was granted service connection for GERD evaluated at 10 percent disabling. 5. On April 10, 2020, more than one year after the date of the prior rating decision, the Veteran filed a new claim for an increased rating for GERD. 6. An increase in disability of the Veteran's service-connected GERD is not factually ascertainable in the one-year period prior to April 10, 2020. 7. In a July 2020 Rating Decision, the Veteran was granted service connection for erectile dysfunction secondary to his unspecified depressive disorder with accompanying grant of entitlement to SMC for loss of use of a creative organ, effective January 13, 2020, the date of his claim. 8. The Veteran did not file an Intent to File within the year prior to the January 13, 2020, VA Form 526 EZ, Fully Developed Claim, in which she sought service connection for erectile dysfunction. 9. The Veteran's January 13, 2020, VA Form 21-526EZ, Fully Developed Claim, seeking service connection for erectile dysfunction was filed more than a year after separation from service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to May 22, 2020, for the 70 percent evaluation for unspecified depressive disorder have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date prior to April 10, 2020, for the 60 percent evaluation for gastroesophageal reflux disease (GERD) with esophagitis have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date prior to January 13, 2020, for the grant of service connection for erectile dysfunction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to an effective date prior to January 13, 2020, for the grant of entitlement to special monthly compensation based on loss of use of a creative organ 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 October 7, 2009, to March 17, 2020. In October 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of August 2020 and September 2020 decisions. In February 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior August 2020 decision regarding erectile dysfunction, GERD, and SMC, and the September 2020 decision regarding an unspecified depressive disorder. Therefore, the Board may only consider the evidence of record at the time of the August 2020 decision regarding erectile dysfunction, GERD, and SMC, and the September 2020 decision regarding an unspecified depressive disorder decision and any evidence submitted during an applicable evidentiary window. In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 decision regarding erectile dysfunction, GERD, and SMC, and the September 2020 decision regarding an unspecified depressive disorder agency of original jurisdiction (AOJ) decisions, which were subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that the issue of the proposed reduction in rating of the Veteran's GERD is not currently before the Board. EFFECTIVE DATES The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2)(i). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The effective date for an increased rating claim will be the date of receipt of the claim, or the date entitlement arose, unless it is factually ascertainable that an increase occurred during the one-year period prior to the filing of a non-initial increased rating claim. 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Additionally, a claimant or his or her duly authorized representative may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Id. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form. Id. If VA receives a complete application form within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b)(1)(i)-(iii) specifies that an intent to file be submitted (i) electronically, (ii) in writing on the paper intent to file form proscribed by VA and signed and dated, or (iii) orally communication to VA personnel. In order to be treated as a written intent to file a claim, the correspondence must be made on the VA intent to file a claim form as prescribed by the Secretary, signed, and dated. 38 C.F.R. § 3.155(b)(1)(ii). 1. Entitlement to an effective date prior to May 22, 2020, for the 70 percent evaluation for unspecified depressive disorder The Veteran contends that he is entitled to an earlier effective date for the increase to a 70 percent rating for his unspecified depressive disorder but offers no specific arguments. Here, the AOJ granted an effective date for the Veteran's increased rating of May 22, 2020, the date of receipt of a supplemental claim. The date that VA received the supplemental claim is the earliest possible date for an increased rating, unless the increase occurred during the one-year period prior to the filing of the supplemental claim. 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Therefore, the Board will consider whether the increased rating can be granted as early as May 22, 2019. However, after a thorough review of the Veteran's VA and private treatment records, the Board finds that there is no factually ascertainable date between May 22, 2019, and May 22, 2020, in which the Veteran's unspecified depressive disorder worsened. Mental Status Examinations during the relevant period indicated no abnormal behavior, appropriate affect, anxious mood, no hallucinations, no delusions, appropriate thought content, and a report of sleep disturbance, but no symptoms supporting a 70 percent rating or representative of significant worsening. The increased ratings were based on the August 2020 VA examination. Unfortunately, there is no evidence during the one-year look-back period that supports an increased rating prior to May 2020. As such, entitlement to an earlier effective date for the increased 70 percent rating for an unspecified depressive disorder, is denied. See 38 C.F.R. § 3.400(o). 2. Entitlement to an effective date prior to April 10, 2020, for the 60 percent evaluation for gastroesophageal reflux disease (GERD) with esophagitis The Veteran contends that he is entitled to an earlier effective date for the increase to a 60 percent rating for his GERD but offers no specific arguments. Here, the AOJ granted an effective date for the Veteran's increased rating for GERD of April 10, 2020, the date of receipt of a supplemental claim. The date that VA received the supplemental claim is the earliest possible date for an increased rating, unless the increase occurred during the one-year period prior to the filing of the supplemental claim. 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Therefore, the Board will consider whether the increased rating can be granted as early as April 10, 2019. However, after a thorough review of the Veteran's VA and private treatment records, the Board finds that there is no factually ascertainable date between April 10, 2019, and April 10, 2020, in which the Veteran's GERD worsened. The Veteran's VA treatment records indicate that he was receiving follow up care for GERD during the relevant period, but no significant worsening is noted. The increased ratings were based on the May 2020 VA examination. Unfortunately, there is no evidence during the one-year look-back period that supports an increased rating prior to April 2020. As such, entitlement to an earlier effective date for the increased 60 percent rating for GERD, is denied. See 38 C.F.R. § 3.400(o). 3. Entitlement to an effective date prior to January 13, 2020, for the grant of service connection for erectile dysfunction 4. Entitlement to an effective date prior to January 13, 2020, for the grant of entitlement to special monthly compensation based on loss of use of a creative organ The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for erectile dysfunction and related entitlement to SMC based on loss of use of a creative organ but offers no specific arguments. As noted above, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2)(i). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). Here, the Veteran submitted a claim for entitlement to service connection for erectile dysfunction secondary to the medications used to treat his unspecified depressive disorder, which was received on January 13, 2020. There are no prior applications or communications that could be construed as claims prior to that date. Accordingly, the date on which the claim was received by VA, January 13, 2020, is the earliest possible effective date for entitlement to service connection for erectile dysfunction and SMC for loss of use of a creative organ. 38 C.F.R. § 3.1 (r). L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.