Citation Nr: 1311989	
Decision Date: 04/11/13    Archive Date: 04/19/13

DOCKET NO.  09-17 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an effective date earlier than March 18, 2008, for the grant of service connection for a lumbosacral strain.  

2.  Entitlement to service connection for scars on the forehead and nose.

3.  Entitlement to service connection for a left wrist disability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1966 to June 1969, including service in the Republic of Vietnam.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  

The Veteran requested a hearing before a Veterans Law Judge; however, he failed to report.  The Board thus finds that his request for a Board hearing is withdrawn.

On his May 2009 Substantive Appeal, the Veteran asserts that he has neck and head/ headache problems as a result of service.  As such, these issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The Veteran's scars on the nose and forehead and left wrist disability claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran did not submit a claim, either formal or informal, for service connection for a back disability until March 18, 2008.


CONCLUSION OF LAW

Entitlement to an effective date prior to March 18, 2008, for the grant of service connection for lumbosacral strain is not warranted.  38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.400 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).  

In March 2008, the Veteran filed a claim of entitlement to service connection for a back disability.  This claim was granted in the September 2008 rating decision on appeal, and assigned an initial rating of 20 percent, effective March 18, 2008, the date of receipt of his initial claim.  The Veteran argues that his effective date should be the date of his initial in-service injury in 1968.  

The basic facts are not in dispute.  As the RO noted, the Veteran's initial application for service connection was filed with VA on March 18, 2008, and indeed, the Veteran does not contend otherwise.

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Here, the RO granted service connection effective the date the Veteran's original claim of service connection for a back disability was filed with VA.  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Because the Veteran did not file a formal or informal application for service connection prior to March 18, 2008, VA is precluded, as a matter of law, from granting an effective date prior to March 18, 2008, for service connection for a low back disability.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  


ORDER

An effective date earlier than March 18, 2008, for the grant of service connection for lumbosacral strain is denied.  


REMAND

As to the Veteran's claim of service connection for scars on the nose and forehead, he reports that he was cut by a low tin roof in Phubai, Vietnam, about September 1967, and received stitches for these cuts.  He also states that he has experienced pain in his left wrist since service.  As such, the Veteran contends that he is entitled to service connection for these disabilities.  


Additionally, the Veteran's VA treatment records do not indicate the existence of any scars on his nose or forehead.  However, a May 2009 letter from the Veteran's daughter states he has a scar on the right side of his upper nose, next to his eye.    

To date, he has not been afforded VA examinations to assess whether he has disabilities of the left wrist or scars on his nose or forehead that are related to or had their onset in service.  In light of the Veteran's competent report of having these problems since service, the Board finds that a VA examination is necessary to adjudicate these claims.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  As such, these issues must be remanded.

Finally, VA is required to assist the Veteran in developing these claims.  38 U.S.C.A. § 5103A(b)(1).  And insofar as records from a Federal department agency may aid in the development of these claims, VA must attempt to obtain these records until it is reasonably certain they do not exist or that any further efforts to obtain them would be futile.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159.

As indicated above, the STRs associated with the claims file do not contain any reference to the claimed disorders.  However, the Veteran has repeatedly stated he received stitches at the 3rd Marine dispensary, Hill 180 in Phubai, South Vietnam, in September 1967 for cuts to his forehead and nose after he ran into a tin roof.  Therefore, VA must ensure all available STRs are associated with the claims file.

Finally, on remand, the RO must ensure all relevant private treatment records and any outstanding, pertinent VA treatment records from VA Medical Centers, should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the National Personnel Records Center (NPRC), or any other appropriate service department offices, to obtain the Veteran's complete service treatment/ personnel records.  Specifically, the RO should obtain any records from the 3rd Marine dispensary, Hill 180 in Phubai, South Vietnam, in September 1967.  If more details are required to conduct such search, the Veteran should be asked to provide the necessary information.  The results of such request, whether successful or unsuccessful, should be documented in the claims file, and the Veteran informed of any negative results. 

2.  Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of and/or were contemporaneously informed of his scars on the forehead and nose, and left wrist disabilities during and/or since service.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  Associate copies of the Veteran's VA medical records, which are not already in the claims folder, concerning his claimed disorders, since November 2011. 

4.  Ask the Veteran to identify all other medical providers who have treated him for scars or a left wrist disability.  After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder.

5.  Schedule the Veteran for appropriate VA examinations to determine whether these claimed disabilities are related to or had their onset in service.  The claims folder must be made available to and reviewed by the examiner.  

The examiner should identify any scars on the forehead and/ or nose, and any current left wrist disabilities found to be present, including any evidence of arthritis.  He or she must then opine as to whether it is at least as likely as not that any currently diagnosed disabilities is/ are etiologically related to or had their onset in service.  In doing so, the examiner must acknowledge and discuss the competent lay reports regarding the onset of these conditions.  All findings and conclusions, accompanied by a rationale, should be set forth in a legible report.  

6.  Then readjudicate the Veteran's claims.  If any benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. 

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs