Citation Nr: 1322314 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-41 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for migraine headaches. 2. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for a partial hysterectomy, uterus. 3. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for residuals, right shoulder rotator cuff repair with impingement. 4. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for bronchiectasis with moderate obstructive lung defect and severe small disease. 5. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for dequervain's tenosynovitis of the bilateral wrists. 6. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for a right meniscus tear, status-post surgery. 7. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for osteoporosis with a compression fracture of the L1 vertebral body. 8. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for interstitial cystitis. 9. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for a scar to the right shoulder, as a residual of a rotator cuff repair. 10. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for a left upper eyelid ptosis. 11. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for hemorrhoids. 12. Entitlement to an effective date prior to November 16, 2006 for the grant of service connection for right hip trochanteric bursitis. 13. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for right elbow medial and lateral epicondylitis. 14. Entitlement to an effective date prior to November 13, 2006 for the grant of service connection for left elbow medial and lateral epicondylitis. 15. Entitlement to an effective date prior to November 13, 2006 for the award of special monthly compensation (also referred to herein as 'SMC') based on the anatomical loss of a creative organ. 16. Entitlement to service connection for a mild left plantar spur. 17. Entitlement to service connection for a right foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1974 to April 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In her October 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. Thereafter, in a September 2011 communication, the Veteran indicated that she wished to withdraw her request for a Board hearing and requested that her case be forwarded to the Board without delay. Therefore, the Board finds that the Veteran has withdrawn her request for a Board hearing. 38 C.F.R. § 20.704(e) (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to service connection for a mild left plantar spur and a right foot disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran separated from active duty service on April 30, 2004. 2. On November 13, 2006, the RO received the Veteran's formal claims for service connection for a partial hysterectomy, hemorrhoids, right hip bursitis, a bilateral elbow disorder, a low back compression fracture, a right knee meniscus tear, a right shoulder rotator cuff, chronic bronchiectasis, interstitial cystitis, bilateral dequervain's tenosynovitis, migraine headaches, a right shoulder scar and left lid ptosis. 3. In a September 2007 rating decision, service connection was granted for such disabilities, effective November 13, 2006. In addition, special monthly compensation based on the anatomical loss of a creative organ was also awarded, effective November 13, 2006. 4. VA received no communication that constitutes a formal or informal claim for service connection for these disabilities prior to November 13, 2006. CONCLUSIONS OF LAW 1. The effective date for the grant of service connection for migraine headaches may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 2. The effective date for the grant of service connection for a partial hysterectomy, uterus may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 3. The effective date for the grant of service connection for residuals, right shoulder rotator cuff repair with impingement may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 4. The effective date for the grant of service connection for bronchiectasis with moderate obstructive lung defect and severe small disease may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 5. The effective date for the grant of service connection for dequervain's tenosynovitis of the bilateral wrists may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 6. The effective date for the grant of service connection for a right meniscus tear, status-post surgery may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 7. The effective date for the grant of service connection for osteoporosis with a compression fracture of the L1 vertebral body may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 8. The effective date for the grant of service connection for interstitial cystitis may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 9. The effective date for the grant of service connection for a scar to the right shoulder, as a residual of a rotator cuff repair may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 10. The effective date for the grant of service connection for a left upper eyelid ptosis may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 11. The effective date for the grant of service connection for hemorrhoids may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 12. The effective date for the grant of service connection for right hip trochanteric bursitis may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 13. The effective date for the grant of service connection for right elbow medial and lateral epicondylitis may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 14. The effective date for the grant of service connection for left elbow medial and lateral epicondylitis may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for this disability. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 15. The effective date for the award of special monthly compensation based on the anatomical loss of a creative organ may be no earlier than November 13, 2006, the date of VA receipt of the initial claim for service connection for a hysterectomy. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between a Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned effective dates for her various disabilities and SMC from the original grant of service connection and award of SMC. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claims for service connection for her disabilities and SMC were granted and effective dates were assigned in the September 2007 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records, service personnel records, VA treatment records, and various private treatment records have been obtained and considered. Additionally, she has been afforded various examinations so as to assess the etiology and severity of her claimed disabilities. Moreover, pertinent to her effective date claims, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of her original claims for service connection, and her arguments on appeal are limited to her interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claims. VA's General Counsel has held that in cases where a claim cannot be substantiated as there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims. II. Analysis The Veteran contends that an effective date of May 1, 2004, the day after she separated from service, is warranted for the grants of service connection for the claimed disabilities and SMC as she submitted a formal claim for the disabilities within one year of service discharge. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R.§ 3.400(b)(2)(i). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed.Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records do not constitute informal claims when service connection has not yet been established for the condition. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). A review of the claims folder reveals the first claim, formal or informal, seeking service connection for a partial hysterectomy, hemorrhoids, right hip bursitis, a bilateral elbow disorder, a low back compression fracture, a right knee meniscus tear, a right shoulder rotator cuff, chronic bronchiectasis, interstitial cystitis, bilateral dequervain's tenosynovitis, migraine headaches, a right shoulder scar and left lid ptosis was the Veteran's claim received by the RO on November 13, 2006, more than one year after separation from service. Specifically, the Veteran's original Application for Compensation and/or Pension (VA Form 21-526) was received by VA on November 13, 2006. By rating action dated in September 2007, the RO granted service connection for the disabilities on appeal and awarded the Veteran special monthly compensation based on the anatomical loss of a creative organ. The grants of service connection, as well as the award of special monthly compensation, were effective November 13, 2006. In awarding service connection and special monthly compensation for these disabilities, the RO assigned an effective date based on the date of receipt of the initial claims for service connection, that is, November 13, 2006. The Veteran argues that the effective date of her awards of service connection for her disabilities, as well as the for the award of special monthly compensation, should be May 1, 2004, the day following her separation from service, as these disabilities began in service and that she submitted a claim for benefits within one year of her service separation. Specifically, she has argued that her former representative forwarded a completed VA Form 21-526 to VA on March 30, 2004 and submitted a March 2004 Memorandum from this representative in support of her contention. However, while this Memorandum indicated that a VA Form 21-526 was attached, it was addressed to a unit on Maxwell Air Force rather than to VA and requested that the claim be forwarded to the Montgomery RO along with the Veteran's original medical records. In addition, this document did not contain a date stamp from the RO, which would establish receipt by VA. The Veteran has also argued that a notation on her November 13, 2006 cover letter, which was submitted in conjunction with her VA Form 21-526, suggested that her original claim had been lost by VA. In this regard, the unsigned notation reads "File rec'd from 376 on 10-6-04 and sent to fileroom." The Board notes that "376" appears to refer to the VA Records Processing Center, now called the Records Management Center (RMC), located in St. Louis, Missouri. VA procedures provide that service records related to Air Force Veterans discharged on or after May 1, 1994, with no reserve obligation, are sent directly to the RMC from the installation at which the Veteran was separated. See M21-1MR, Part III. Although this notation may suggest that the Veteran's service treatment records were received by VA within one year of her service discharge, there is no indication in either the Veteran's claims file or within her service treatment records that a claim for benefits had been filed. Indeed the forwarding of her service treatment records to the file room, rather than to an adjudication officer, suggests that such a claim had not been received. The Veteran's argument is therefore without merit. The Board does not doubt the Veteran's belief that her original claims for service connection were filed within one year of her discharge from service or that her former representative properly forwarded her claims to the RO. However, the record does not establish that the Veteran's claims were received by VA within one year of her separation from service. Thus, governing law and regulation provide that the proper effective date in this case is the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1) ; 38 C.F.R.§ 3.400 (b)(2)(i). As there is no evidence of VA receipt of a written claim, formal or informal, for service connection for her disabilities until November 13, 2006, and as this was more than a year after service, the grant of service connection and the award of special monthly compensation may be no earlier than November 13, 2006, the date of VA receipt of the claims. The Board concludes that there is no entitlement to an earlier effective date for the awards of service connection and SMC. The law, not the evidence, governs the outcome of these claims, and as a matter of law, the claims must be denied. Sabonis, supra. ORDER An effective date prior to November 13, 2006 for the grant of service connection for migraine headaches is denied. An effective date prior to November 13, 2006 for the grant of service connection for a partial hysterectomy, uterus, is denied. An effective date prior to November 13, 2006 for the grant of service connection for residuals, right shoulder rotator cuff repair with impingement is denied. An effective date prior to November 13, 2006 for the grant of service connection for bronchiectasis with moderate obstructive lung defect and severe small disease is denied. An effective date prior to November 13, 2006 for the grant of service connection for De Quervain's tenosynovitis of the bilateral wrists is denied. An effective date prior to November 13, 2006 for the grant of service connection for a right meniscus tear, status-post surgery is denied. An effective date prior to November 13, 2006 for the grant of service connection for osteoporosis with a compression fracture of the L1 vertebral body is denied. An effective date prior to November 13, 2006 for the grant of service connection for interstitial cystitis is denied. An effective date prior to November 13, 2006 for the grant of service connection for a scar to the right shoulder, as a residual of a rotator cuff repair, is denied. An effective date prior to November 13, 2006 for the grant of service connection for a left upper eyelid ptosis is denied. An effective date prior to November 13, 2006 for the grant of service connection for hemorrhoids is denied. An effective date prior to November 16, 2006 for the grant of service connection for right hip trochanteric bursitis is denied. An effective date prior to November 13, 2006 for the grant of service connection for right elbow medial and lateral epicondylitis is denied. An effective date prior to November 13, 2006 for the grant of service connection for left elbow medial and lateral epicondylitis is denied. An effective date prior to November 13, 2006 for the award of special monthly compensation based on the anatomical loss of a creative organ is denied. REMAND With respect to the remaining issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C.A. §§ 5107(a), 5103A; 38 C.F.R. § 3.159(c). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed left mild plantar spur and right foot disorders. The Veteran has alleged that she injured her left foot during a mandatory softball game in 1974 and that she had reinjured it in November 1983 while jogging. She also alleged injuring her right foot after unintentionally kicking a box. Service treatment records document podiatry treatment in February 2004 following complaints of left foot pain and that a right foot X-ray was performed in January 2004 after she reported that injuring her toe. A January 2007 VA examiner diagnosed the Veteran with a mild left plantar spur, but did not provide an etiological opinion as to this disability or address her right foot. As such, she should be scheduled for a VA examination to determine the nature and etiology of her claimed left mild plantar spur and right foot disorders. The Board also notes that it is not clear whether the Veteran receives regular treatment from any provider with regard to her claimed left mild plantar spur and right foot disorders. Therefore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated her for her claimed left mild plantar spur and right foot disorders since service and to submit any treatment records or statements addressing the etiology of such disorders. Thereafter, any identified records should be obtained for consideration in the Veteran's appeals. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated her for her claimed left mild plantar spur and right foot disorders since service and to submit any additional statements addressing the etiology of such disorders. After securing any necessary authorization from her, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of her claimed right foot disorder and mild left plantar spur. All indicated tests and studies should be undertaken. The claims file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is asked to furnish an opinion with respect to the following questions: a) Identify all diagnoses of the Veteran's left and right foot. The examiner should identify all such disorders that have been present at any time since November 2006. (b) For each diagnosed disorder of the left and right foot, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service, to include her in-service complaints of foot pain and the January 2004 right foot injury. The examiner should specifically consider the Veteran's lay statements regarding her left and right foot, to include her contentions that she injured left foot during a mandatory softball game in 1974 and that she had re-injured it in November 1983 while jogging as well as her contention that she injured her right foot after unintentionally kicking a box in January 2004. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs