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