Case A26040246

REBECCA N. POULSON · 2026 · Case ID: A26040246

GRANTED

Summary

The veteran, who served from June 1976 to June 1980, appeals the effective dates assigned to several service-connected conditions, including bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, erectile dysfunction, and special monthly compensation (SMC) for loss of use of a creative organ. These conditions were granted service connection as residuals of his service-connected multiple sclerosis. The veteran argued that his initial claim for multiple sclerosis in April 2009 should encompass these residuals, thus warranting an earlier effective date of April 13, 2009, for all related conditions. The Board agreed, finding that the veteran's 2009 claim for multiple sclerosis reasonably encompassed the subsequent residuals based on his described symptoms and medical records. The Board noted that the AOJ had previously granted service connection for multiple sclerosis with an effective date of April 13, 2009. The Board also found that the veteran's erectile dysfunction qualified for SMC based on loss of use of a creative organ. Consequently, the Board granted the earlier effective date of April 13, 2009, for all listed residuals and the SMC award.

Rationale

Claim for MS in April 2009 reasonably encompassed bowel leakage; Effective date of April 13, 2009, granted for MS residuals

Special Benefit

SMC

Docket No.

221205-300656

Full Decision Text

Citation Nr: A26040246
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 221205-300656
DATE: April 29, 2026

ORDER

Entitlement to an effective date of April 13, 2009, but not earlier, for the award of service connection for bowel leakage is granted.

Entitlement to an effective date of April 13, 2009, but not earlier, for the award of service connection for bladder difficulties (interstitial cystitis) is granted.

Entitlement to an effective date of April 13, 2009, but not earlier, for the award of service connection for bilateral eye decreased visual acuity is granted.

Entitlement to an effective date of April 13, 2009, but not earlier, for the award of service connection for erectile dysfunction is granted.

Entitlement to an effective date of April 13, 2009, but not earlier, for the award of service connection for the award of special monthly compensation (SMC) based on the loss of use of a creative organ is granted.

FINDINGS OF FACT

1. In an April 2004 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's original service connection claim for multiple sclerosis. The Veteran did not appeal this decision, and it became final.

2. On April 13, 2009, VA received the Veteran's application to reopen the previously denied claim of service connection for multiple sclerosis, and such claim reasonably encompassed the residual symptoms of bowel leakage, bladder difficulties, decreased visual acuity, erectile dysfunction, and SMC based on the loss of use of a creative organ.

3. In an October 2014 rating decision, the AOJ implemented the Board's October 2014 decision awarding service connection for multiple sclerosis and assigned an effective date of April 13, 2009.

4. Good cause has been shown that would permit the Board to extend the time for filing a VA Form 10182 with respect to the rating decision issued on November 11, 2015, which the Veteran was notified of on September 22, 2021.

CONCLUSIONS OF LAW

1. The criteria for an effective date of April 13, 2009, but not earlier, for the award of service connection for bowel leakage have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

2. The criteria for an effective date of April 13, 2009, but not earlier, for the award of service connection for bladder difficulties have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

3. The criteria for an effective date of April 13, 2009, but not earlier, for the award of service connection for bilateral eye decreased visual acuity have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

4. The criteria for an effective date of April 13, 2009, but not earlier, for the award of service connection for erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

5. The criteria for an effective date of April 13, 2009, but not earlier, for the award of service connection for SMC based on the loss of use of a creative organ have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1976 to June 1980.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision, issued in September 2021, by a Department of Veterans Affairs (VA) Regional Office (RO).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1976 to June 1980.

In the December 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. In a February 2025 decision, the Board dismissed the claims because the criteria for an extension for the filing of a VA Form 10182 had not been met and the Veteran's December 2022 VA Form 10182 was not otherwise timely received. In December 2025, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Remand (JMR) filed by both parties. The parties to the JMR agreed that the Board did not address whether there was a waiver of a claim processing rule and whether there was good cause for the delay in not receiving the VA Form 10182 until December 2022.

Based on the Veteran's election on the December 2022 VA Form 10182, the Board may only consider the evidence of record at the time of the November 2015 AOJ decision on appeal. 38 C.F.R. § 20.301. 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.

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.

Earlier Effective Dates

Generally, the effective date of an award is the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).

For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim provided that the communication or action indicates an intention to apply for one or more benefits and identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection will be the date of the informal claim. Id.

The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155. An intent to file a claim can be submitted in one of the following three ways: (1) saved electronic application; (2) written intent on prescribed intent to file a claim form; or (3) an oral intent communication to designated VA personnel and recorded in writing. 38 C.F.R. § 3.155. Otherwise, a desire to file a claim is treated as a request for application for benefits. 38 C.F.R. § 3.155.

The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155.

A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). The effective date of an award of disability compensation based on a reopened claim shall be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If, however, service connection is granted for a previously denied claim based on relevant service department records that existed and had not been associated with the claims file at the time of the prior denial, the original claim will be reconsidered instead of reopened, and the date of the prior claim remains the date of the claim. 38 C.F.R. § 3.156(c). To be relevant, the newly associated service records "must address a dispositive issue and therefore, affect the outcome of the case." Kisor v. Wilkie, 969 F.3d 1333, 1338-39 (Fed. Cir. 2020). Put differently, the records "must speak to the basis for the VA's prior decision." Id. at 1340. Duplicative records or records relating to an undisputed fact would not speak to the basis for the VA's prior decision. Id.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

1. Entitlement to an effective date prior to March 5, 2015, for the grant of service connection for bowel leakage.

2. Entitlement to an effective date prior to March 5, 2015, for the grant of service connection for bladder difficulties.

3. Entitlement to an effective date prior to March 5, 2015, for the grant of service connection for bilateral eye decreased visual acuity.

4. Entitlement to an effective date prior to March 5, 2015, for the grant of service connection for erectile dysfunction.

5. Entitlement to an effective date prior to March 5, 2015, for the award of SMC based on the loss of use of a creative organ.

The Veteran contends the Board should accept his December 5, 2022 VA Form 10182 as timely filed.

By way of background, on April 13, 2009, VA received the Veteran's application to reopen the previously denied claim of service connection for multiple sclerosis. In an October 2014 decision, the Board awarded service connection for multiple sclerosis. Thereafter, the AOJ implemented the Board's October 2014 decision awarding service connection for multiple sclerosis and assigned an effective date of April 13, 2009.

On March 5, 2015, the Veteran filed an informal claim seeking service connection for bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction. In a November 11, 2015 rating decision, the AOJ granted service connection for bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, erectile dysfunction, and awarded SMC based on the loss of use of a creative organ, and assigned an effective date of March 5, 2015. VA mailed the Veteran a notice letter in September 2021. The letter explained the Veteran's appeal rights, which included filing a supplemental claim, requesting a Higher-Level Review, or appealing to the Board using a VA Form 10182. Attached to the letter was VA Form 20-0998, Your Rights to Seek Further Review of our Decision.

In December 2021, the Veteran filed VA Form 21-0958, Notice of Disagreement. The following day, VA mailed the Veteran a letter stating the Veteran must use the proper form to request review of the recently issued rating decision. The letter explained the proper forms to use depending on the review process elected.

On March 4, 2022, VA published notice in the Federal Register that VBA would automatically extend
The letter explained the Veteran's appeal rights, which included filing a supplemental claim, requesting a Higher-Level Review, or appealing to the Board using a VA Form 10182. Attached to the letter was VA Form 20-0998, Your Rights to Seek Further Review of our Decision.

On March 4, 2022, VA published notice in the Federal Register that VBA would automatically extend the time to respond to VBA benefits-related correspondence that was issued via VBMS Package Manager or centralized printing from July 13, 2021, through December 31, 2021, by 90 days based on good cause under 38 C.F.R. section 3.109(b). Evidence and Notification Delays, 87 Fed. Reg. 12,549-550 (Mar. 4, 2022). VBA explained that it was instituting temporary guidance extending the time to respond by 90 days because the contractor that had provided printing services to VA experienced staffing and equipment issues that caused significant delay in the printing and mailing of VBA benefits letters from July 13, 2021, to December 31, 2021. VBA was unable to ascertain the exact delay between the date on notification letters and the date of actual mailing for such letters; however, automated "batch" letters and letters regarding insurance, loan guaranty, or education matters were not affected. A new contract was awarded on September 29, 2021, and full printing capability was restored on December 31, 2021. VBA instructed that if a claimant did not reply to a notification letter with a timeline provided by a letter that was generated between July 13, 2021, and December 31, 2021, VBA would not take any action until the response period had lapsed, including an additional 90 days. It explained that the 90-day grace period was based on the number of days the mail was delayed. VBA also announced that it would send letters to all claimants impacted by the delays, which the Veteran received on March 25, 2022. Thereafter, on December 5, 2022, the Veteran filed a VA Form 10182, Notice of Disagreement, appealing the November 2015 rating decision, which was issued in September 2021.

Based on the above, the Board finds that good cause exists for a 90-day delay in filing a Board Appeal request with respect to the rating decision issued in September 2021. Applying the 90-day grace period, a Board Appeal request submitted on or before December 21, 2022, would be considered timely. In this case, the Veteran submitted his Board appeal on December 5, 2022; therefore, the Board considers the Veteran's December 5, 2022 Board Appeal timely.

As discussed above, service connection for multiple sclerosis was granted in an October 2014 rating decision, and a 30 percent initial rating was assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8018, effective April 13, 2009. The October 2014 rating decision stated that the 30 percent rating had been assigned because there was insufficient evidence of record to assign ratings based upon the level of severity of the specific residuals of multiple sclerosis; however, the AOJ was in the process of scheduling the Veteran for an examination to better assess the current severity of the service-connected multiple sclerosis.

Diagnostic Code 8018 provides a minimum rating of 30 percent. No higher rating is available under Diagnostic Code 8018. However, a Note also provides that it is required for the minimum ratings for residuals under Diagnostic Codes 8000-8025, that there be ascertainable residuals. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as the bases of evaluation be cited, in addition to the codes identifying the diagnoses.

The Veteran contends that his April 13, 2009 claim for service connection for multiple sclerosis encompassed the residuals of multiple sclerosis, including bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction. Therefore, the
. Determinations as to the presence of residuals not capable of objective verification, i.e., headaches, dizziness, fatigability, must be approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to other disease or no disease. It is of exceptional importance that when ratings in excess of the prescribed minimum ratings are assigned, the diagnostic codes utilized as the bases of evaluation be cited, in addition to the codes identifying the diagnoses.

Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006). The scope of the Veteran's claim for service connection for multiple sclerosis includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition but is considered a claim for any disability that reasonably may be encompassed by several factors - including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim. Id.

Here, the Board finds that the Veteran's April 13, 2009 claim for service connection for multiple sclerosis reasonably encompassed the residuals of bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction. In his April 2009 statement, the Veteran described numerous symptoms of multiple sclerosis, including bladder issues. In a July 2009 statement, the Veteran described vision issues. In a July 2010 medical treatment record, the Veteran reported symptoms of bowel leakage, bladder dysfunction, and erectile dysfunction. These symptoms are encompassed by the separately rated residuals of bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction. As the Board finds that the Veteran's April 2009 claim for service connection for multiple sclerosis reasonably encompassed the related symptoms that were subsequently service-connected as bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction, the effective dates for the awards of service connection for the bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, and erectile dysfunction, as residuals of the service-connected multiple sclerosis, should be April 13, 2009, the date of the award of service-connection for multiple sclerosis. See Ellington v. Peake, 531 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). There is no basis for an even earlier effective date.

Lastly, the Board finds that the Veteran's erectile dysfunction resulted in the loss of use of a creative organ. Therefore, SMC based on the loss of use of a creative organ is warranted effective April 13, 2009.

In conclusion, the Board finds the awards of service connection for the bowel leakage, bladder difficulties, bilateral eye decreased visual acuity, erectile dysfunction, and entitlement to SMC based on the loss of use of a creative organ, as residuals of the service-connected multiple sclerosis, should be effective April 13, 2009.

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board S. Gary, 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.

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