Citation Nr: A25035561 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240620-451526 DATE: April 17, 2025 ISSUES 1. Entitlement to an effective date prior to August 10, 2022, for prostate cancer based on a theory of entitlement other than presumptive service connection under the PACT Act. 2. Entitlement to an effective date prior to August 10, 2022, for erectile dysfunction as secondary to prostate cancer. 3. Entitlement to an effective date prior to August 10, 2022, for special monthly compensation (SMC) based on the loss of use of a creative organ. REMANDED Entitlement to an effective date prior to August 10, 2022, for prostate cancer based on a theory of entitlement other than presumptive service connection under the PACT Act is remanded. Entitlement to an effective date prior to August 10, 2022, for erectile dysfunction as secondary to prostate cancer is remanded. Entitlement to an effective date prior to August 10, 2022, for SMC based on the loss of use of a creative organ is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1973 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). As background, the Veteran filed VA Form 21-526EZ for service connection for prostate cancer in January 2021. Following a January 2023 rating decision denying the claim and a March 2023 Supplemental Claim, in an August 2023 rating decision the RO granted service connection for prostate cancer on a presumptive basis due to herbicide agents exposure. Service connection for erectile dysfunction as secondary to prostate cancer and SMC based on loss of use of a creative organ were also both granted, with an effective date of August 10, 2022. In November 2023, the Veteran filed a Higher-Level Review (HLR) request regarding an earlier effective date which was denied in a March 2024 HLR rating decision. The Veteran then timely filed a June 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and selected the Direct Review docket. Accordingly, the Board may only consider the evidence of record at the time of the August 2023 supplemental claim rating decision. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to an effective date prior to August 10, 2022, for prostate cancer based on a theory of entitlement other than presumptive service connection under the PACT Act. The Veteran claims entitlement to service connection for prostate cancer prior to August 10, 2022. He contends that his disability, in addition to herbicide agents' exposure, may have been caused by his exposure to chemicals as a result of his military occupational specialty (MOS) of Navy Aviation Structural Mechanic - Hydraulic. See March 2023 Third Party Correspondence; DD-214. Additionally, the Veteran contends that effective dates should be set prior to the date of liberalizing law based on fairness, retroactive justice, and the unique nature of military service. See November 2023 Appellate Brief. As an initial matter, in a January 2023 VA Toxic Exposure Risk Activity (TERA) Memorandum, VA conceded the Veteran qualified for a presumption due to his squadron location at Naval Air Station Agana, Guam. A March 2023 TERA Memorandum clarified that the Veteran was exposed to specifically herbicide agents and that also there was evidence of non-deployment related TERA due to his MOS of aviation mechanic/aviation hydraulic mechanic. Specific non-deployment MOS-related exposures were not disclosed. As noted above, the Veteran was granted service connection for prostate cancer on a presumptive basis under the PACT Act with an effective date of August 10, 2022. Under the PACT Act, the effective date of such an award can be no earlier than August 10, 2022, the date of enactment of the Act. Pub. L. 117-168; see also 38 U.S.C. § 5110. To the extent that the Veteran argued that equity warrants an earlier effective date than assigned, the Board notes that it is bound by the applicable legal authority and is without authority to grant benefits out of equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It is well-established that no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). However, an earlier effective date may be warranted if the grant is based on another theory of entitlement, such as direct service connection. To that end, the Board is required to consider all potential theories of entitlement to service-connection raised by the evidence. See Johnson v. Collins, No. 23-7589, See also Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Further, the PACT Act in relevant part, requires that when a Veteran, whose active service subjected the Veteran to participation in a TERA, files a claim to service-connect a disability and there is evidence of such disability, VA must provide the Veteran with a VA examination and obtain a medical opinion addressing the possibility of a nexus between the claimed disability and the TERA. See 38 U.S.C. § 1168(a)(1). In this case, the evidence noted above, including the Veteran's contention regarding exposure to chemicals as part of his MOS duties, the VA Memorandum conceding TERA based on his Guam deployment and MOS, and the prior promulgation of the PACT Act, was before the RO at the time of the August 2023 supplemental claim rating decision upon which the current appeal is ultimately based. However, although the Veteran was afforded VA examinations (records review) to determine the severity of his diagnosed prostate cancer, a medical opinion addressing the possibility of a nexus between the claimed disability and TERA(s) was never offered or proffered. The Board finds this to be a pre-decisional duty to assist error. As such, a remand is necessary to correct this pre-decisional duty to assist error by obtaining a VA medical opinion to determine the nature and etiology of the Veteran's prostate cancer as it relates to his participation in TERAs as noted above. 2. Entitlement to an effective date prior to August 10, 2022, for erectile dysfunction as secondary to prostate cancer. 3. Entitlement to an effective date prior to August 10, 2022, for SMC based on the loss of use of a creative organ. The Veteran claims, in connection with his entitlement to an earlier effective date for prostate cancer, entitlement to an effective date prior to August 10, 2022 for his service-connected erectile dysfunction as secondary to prostate cancer and SMC based on the loss of use of a creative organ. In the August 2023 supplemental claim rating decision discussed above, the Veteran was granted entitlement to service connection for erectile dysfunction as secondary to prostate cancer, and entitlement to SMC based on loss of use of a creative organ granted ancillary to the service connection grant for erectile dysfunction, with the effective date of August 10, 2022 for both. Of note, the RO, sua sponte, granted service connection for erectile dysfunction, in concert with the grant of service connection for prostate cancer. The Veteran's erectile dysfunction was assessed during an October 2022 VA prostate medical examination, in which the examiner opined that the etiology of the Veteran's erectile dysfunction was adenocarcinoma of the prostate and its treatment. As the effective date of the Veteran's service-connected erectile dysfunction is directly tied to the effective date of the Veteran's service-connected prostate cancer, the Board finds that the two issues are inextricably intertwined, and thus a remand is appropriate. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Similarly, as the effective date of the Veteran's entitlement to SMC due to loss of use of a creative organ is directly tied to the effective date of the Veteran's service-connected erectile dysfunction, the Board finds these issues too are inextricably intertwined, and thus a remand is appropriate. Id. The matters are REMANDED for the following action: 1. Determine the specific non-deployment toxic exposures resulting from the Veteran's MOS of Navy Aviation Structural Mechanic - Hydraulic, such as fuel and fuel exhaust, oil, lubricants, asbestos, etc. as appropriate. 2. Then, obtain a VA TERA medical opinion (an examination should be scheduled if deemed necessary) from an appropriate medical professional regarding the nature and etiology of the Veteran's service-connected prostate cancer. The electronic claims folder, including a copy of this remand, must be made available to the examiner. The examiner is asked to provide an opinion as to the following: 3. Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's prostate cancer was incurred in or is otherwise related to active service, to include participation in TERA(s) stemming from his MOS duties as a Navy Aviation Structural Mechanic - Hydraulic? The examiner must consider the total potential exposure through all applicable military deployments, and the synergistic, combined effect of all TERAs. The examiner must also note review of the complete claims file and provide a full supporting rationale for the opinion. If the examiner cannot provide the requested opinion for any reason, then please explain why. 4. Readjudicate the issues of entitlement to an effective date prior to August 10, 2022, for erectile dysfunction as secondary to prostate cancer and entitlement to SMC based on loss of use of a creative organ, as appropriate. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Matthew Leahy, 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.