Citation Nr: 0811265	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  07-37 039	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent 
for residuals of a shell fragment wound of the groin.

2.  Entitlement to an effective date prior to February 19, 
2004, for service connection for the residuals of a shell 
fragment wound of the groin.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his daughter



ATTORNEY FOR THE BOARD

W. Preston, Associate Counsel


INTRODUCTION

The veteran served on active duty from May 1943 to July 1946.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a November 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida.

The veteran and his daughter testified at a Travel Board 
hearing before the undersigned Veterans Law Judge in February 
2008.  A transcript of the hearing is of record.

A motion to advance this case on the docket due to advanced 
age was granted by the Board in March 2008.  See 38 U.S.C.A. 
§ 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007).

The Board notes that the report of a December 2003 MRI study 
indicates that in addition to retained metallic foreign 
bodies located in the scrotum, there appeared to be a 
retained metallic foreign body in the proximal left thigh.  
In the Board's opinion, this report raises the issue of 
entitlement to service connection for residuals of a shell 
fragment wound of the proximal left thigh.  Accordingly, this 
matter is referred to the RO for appropriate action.

The veteran's claim for a higher initial rating for residuals 
of a shell fragment wound of the groin is addressed in the 
remand that follows the order section of this decision.



FINDING OF FACT

A claim of entitlement to service connection for residuals of 
shell fragment wound of the groin was not received within one 
year after the veteran's discharge from service or prior to 
February 19, 2004. 


CONCLUSION OF LAW

The criteria for assignment of an effective date prior to 
February 19, 2004, for the grant of service connection for 
residuals of a shell fragment wound of the groin are not met.  
38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2007), provide that VA will assist a claimant 
in obtaining evidence necessary to substantiate a claim but 
is not required to provide assistance to a claimant if there 
is no reasonable possibility that such assistance would aid 
in substantiating the claim.  They also require VA to notify 
the claimant and the claimant's representative, if any, of 
any information, and any medical or lay evidence, not 
previously provided to the Secretary that is necessary to 
substantiate the claim.  As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.  In 
addition, VA must also request that the claimant provide any 
evidence in the claimant's possession that pertains to the 
claim.  

As explained below, the pertinent facts in this case are not 
in dispute and the law is dispositive.  Consequently, there 
is no additional evidence that could be obtained to 
substantiate the claim, and no further action is required to 
comply with the VCAA or the implementing regulation.  See 
Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 
5-2004 (June 23, 2004).

Accordingly, the Board will address the merits of the claim.

Analysis

The veteran apparently believes that the effective date for 
the grant of service connection for residuals of a shell 
fragment wound of the groin should be immediately after his 
discharge from service because the wound was incurred in 
service.  

While the Board can appreciate why the veteran believes the 
award should be effective from that time, under the criteria 
governing awards of service connection, the effective date of 
an award of service connection based on a claim received more 
than one year after a veteran's discharge from service will 
be the later of the date of receipt of claim or the date of 
entitlement.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  In 
the case at hand, the veteran's initial claim for service 
connection for this disability was filed on February 19, 
2004.  This fact is not in dispute.  Therefore, his claim for 
an earlier effective date must be denied because it is 
without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 
430 (1994). 

To some extent, the appellant appears to be raising an 
argument couched in equity in that he is contending that 
since his disability began sometime in 1943, an earlier 
effective date is warranted.  However, the Board is bound by 
the law and is without authority to grant benefits on an 
equitable basis.  See 38 U.S.C.A. §§ 503, 7104; Harvey v. 
Brown, 6 Vet. App. 416, 425 (1994).  The Board further 
observes that "no equities, no matter how compelling, can 
create a right to payment out of the United States Treasury 
which has not been provided for by Congress."  Smith (Edward 
F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing 
(1990)].  As previously stated, the effective date assigned 
in this case is dictated by the date of filing of the 
veteran's claim.


ORDER

Entitlement to an effective date prior to February 19, 2004, 
for service connection for residuals of a shell fragment 
wound of the groin is denied.


REMAND

The veteran seeks an initial rating in excess of 10 percent 
for residuals of a shell fragment wound of the groin.

The record reflects that the RO awarded service connection 
for the shell fragment wound residuals on the basis of 
treatment records.  The veteran has not been afforded a VA 
examination to determine the current nature and extent of the 
shell fragment residuals.  Such an examination is needed for 
rating purposes.

It also appears that additional pertinent medical records are 
available.  In this regard, the Board notes that during the 
Travel Board hearing in February 2008, the veteran testified 
that he was currently receiving VA treatment at "Bee Ridge" 
(the street address of the VA Outpatient Clinic in Sarasota, 
Florida).  No records pertaining to treatment or evaluation 
of the veteran at that facility since September 2007 have 
been associated with the claims folder.  Moreover, at the 
Travel Board hearing, the veteran's daughter indicated that 
the veteran was being treated at the Lakewood Ranch Hospital 
and the Life Care Center rehabilitation hospital.  No records 
from either facility have been associated with the claims 
file.  

In light of these circumstances, the case is REMANDED to the 
RO or the Appeals Management Center (AMC) for the following 
actions:

1.  The RO or the AMC should request the 
veteran to provide a copy of any 
outstanding medical records pertaining to 
any post-service treatment or evaluation 
of the residuals of a shell fragment 
wound of the groin or the identifying 
information and any necessary 
authorization to enable VA to obtain a 
copy of the records on his behalf.

2.  The RO or the AMC should undertake 
appropriate development to obtain any 
pertinent evidence identified but not 
provided by the appellant.

3.  In any event, the RO or the AMC 
should obtain a copy of any pertinent 
records pertaining to treatment or 
evaluation of the shell fragment wound 
residuals at the VA Outpatient Clinic in 
Sarasota, Florida since September 2007.  

4.  If the RO or the AMC is unsuccessful 
in obtaining any pertinent evidence 
identified by the appellant, the RO or 
the AMC should so inform the appellant 
and his representative and request them 
to provide the outstanding evidence.

5.  Then, the RO or the AMC should 
arrange for the veteran to be afforded a 
VA examination to determine the current 
nature and severity of all current 
residuals of a shell fragment wound of 
his groin.  The claims folder, to include 
a copy of this Remand, must be made 
available to and reviewed by the 
examiner.  Any indicated studies should 
be performed.  All current residuals of 
the shell fragment wound and any 
resulting functional impairment should be 
identified.  

The examiner must also provide an opinion 
concerning the impact of the disability 
on the veteran's ability to work and 
provide the supporting rationale for this 
opinion.

6.  The RO or the AMC should then review 
the claims folder to ensure that all 
development actions have been conducted 
and completed in full.  If any 
development is incomplete, appropriate 
corrective action is to be implemented.  

7.  The RO or the AMC should also 
undertake any other development it 
determines to be warranted.

8.  Then, the RO or the AMC should 
readjudicate the issue on appeal.  If the 
benefit sought on appeal is not granted 
to the veteran's satisfaction, the 
veteran and his representative should be 
furnished a supplemental statement of the 
case and afforded the requisite 
opportunity to respond.  Thereafter, 
subject to current appellate procedures, 
the case should be returned to the Board 
for further appellate consideration, if 
appropriate.  

By this remand, the Board intimates no opinion as to any 
final outcome of this case.  The veteran need take no action 
until he is otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matter the Board has remanded.  See 
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the United States Court of Appeals for 

Veterans Claims (Court) for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs