Citation Nr: 1514604	
Decision Date: 04/06/15    Archive Date: 04/21/15

DOCKET NO.  08-33 806A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for keloid formation of the groin.

2.  Entitlement to service connection for diabetes mellitus type II, claimed as due to Agent Orange exposure and as due to adjuvant vaccine.

3.  Entitlement to service connection for hypertension, claimed as due to Agent Orange exposure and as due to adjuvant vaccine.

4.  Entitlement to service connection for heart disease, claimed as due to Agent Orange exposure and as due to adjuvant vaccine.

5.  Entitlement to service connection for erectile dysfunction, claimed as due to Agent Orange exposure or adjuvant vaccine, or as secondary to keloid of the groin.

6.  Entitlement to an initial compensable evaluation for bilateral hearing loss.  

7.  Entitlement to an initial evaluation in excess of 10 percent for keloid formations of the back and hands from March, 21, 2007, to November 1, 2014.  

8.  Entitlement to an initial compensable evaluation for keloid formations, linear from head to toe, prior to July 22, 2011, and in excess of 10 percent thereafter.  

9.  Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU).

10.  Entitlement to an effective date prior to March 21, 2007, for the grant of service connection for keloid formations of the head, face or neck.  

11.  Entitlement to an effective date prior to March 15, 2010, for the grant of service connection for keloid formations of the anterior trunk.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from June 1964 to June 1968.

This case is before the Board of Veterans' Appeals (BVA or Board) on appeal in part from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for keloid formations of the chest, neck and left deltoid, as well as keloid formations of the back and hands.  The effective date for each claim was March 21, 2007, and the evaluation for each disability was 10 percent.  The rating decision also granted service connection for bilateral hearing loss, with a noncompensable evaluation.  It denied service connection for diabetes mellitus, type II, heart disease and erectile dysfunction.

An October 2010 rating decision denied service connection for diabetes mellitus, type II, hypertension, heart disease and erectile dysfunction, each as secondary to adjuvants in vaccines.  

An October 2011 rating decision closed out the two previous evaluations of keloid formations, described as to the chest, neck and left deltoid at 30 percent disabling and to the back and hands at 10 percent disabling.  The rating decision noted that the Veteran's keloid formations were now evaluated as three different conditions.  

Specifically, the rating decision granted service connection for keloid formations of the head, face or neck (previously evaluated as chest, neck and left deltoid), with an evaluation of 50 percent, effective March 15, 2010.  The rating decision granted service connection for keloid formations, anterior trunk (previously evaluated as back and hands), with a noncompensable evaluation, effective March 15, 2010.  The rating decision granted service connection for keloid formations, linear from head to toe, with a noncompensable evaluation, effective March 15, 2010, and a 10 percent evaluation, effective July 22, 2011.  

A July 2014 rating decision found a clear and unmistakable error in the evaluation of keloid formations of the head, face or neck (previously evaluated as chest, neck and left deltoid) and established a retroactive increased evaluation to 50 percent, from March 21, 2007.

The issues of service connection for keloid formation of the groin; diabetes mellitus type II; hypertension; heart disease; erectile dysfunction; an initial compensable evaluation for bilateral hearing loss; an initial evaluation in excess of 10 percent for keloid formations of the back and hands from March, 21, 2007, to November 1, 2014; an initial compensable evaluation for keloid formations, linear from head to toe, prior to July 22, 2011, and in excess of 10 percent thereafter; and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran submitted a claim for service connection for skin disease on March 21, 2007.  


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to March 21, 2007, for the grant of service connection for keloid formations of the head, face or neck, have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).

2.  The criteria for an effective date of March 21, 2007, but not earlier, for the grant of service connection for keloid formations of the anterior trunk have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The current appeal arises from the Veteran's disagreement with the initial effective dates assigned following grants of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, records from the Social Security Administration, VA examination reports, the Veteran's own statements in support of his claim and the transcript of a February 2014 hearing before a Decision Review Officer (DRO).  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.

An additional evaluation at this point would not affect the Veteran's claims for earlier effective dates for the grants of service connection.

The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.

Turning to the merits of the Veteran's claims, the effective date for the grant of direct service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt 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)(i).

The Veteran generally contends that he is entitled to earlier effective dates for the grants of service connection for keloid formations of the head, face or neck, as well as keloid formations of the anterior trunk.  He contends that the effective dates should be December 18, 2006, when he first signed up for VA benefits.

Based on a thorough review of the record, the Board finds that the evidence supports an effective date of March 21, 2007, for the grant of service connection for keloid formations of the anterior trunk.  However, the preponderance of the evidence is against an effective date prior to March 21, 2007, for the grants of service connection for keloid formations of the anterior trunk and keloid formations of the head, face or neck.  

On a December 2006 VA Form 21-4138, the Veteran raised claims for service connection for various disabilities.  The Veteran did not address, mention or refer to keloid formations or any skin disability or condition.  

On a VA Form 21-526a, received March 21, 2007, the Veteran raised a claim for service connection for skin disease.  This claim ultimately led to the December 2007 rating decision that granted service connection for keloid formations of the chest, neck and left deltoid, as well as keloid formations of the back and hands, each effective March 21, 2007.  This claim also ultimately led to the July 2014 rating decision that established an effective date for service connection for keloid formations of the head, face or neck of March 21, 2007.  

Applying the pertinent VA regulation (38 C.F.R. § 3.400(b)(2)(i)) to the facts, it is clear that an effective date of March 21, 2007 (i.e., the date of the Veteran's claim for service connection for skin disease) is warranted for the grant of service connection for keloid formations of the anterior trunk.  Similarly, it is also clear that an effective date earlier than March 21, 2007 is not warranted for the grant of service connection for keloid formations of the anterior trunk or keloid formations of the head, face or neck.  


ORDER

An effective date prior to March 21, 2007, for the grant of service connection for keloid formations of the head, face or neck is denied. 

An effective date of March 21, 2007, but not earlier, for the grant of service connection for keloid formations of the anterior trunk is granted.  

REMAND

During the February 2014 DRO hearing, the Veteran testified that he currently received all of his medical treatment from VA.  A July 2014 supplemental statement of the case relates that it was based in part on a review of VA treatment records from the VA Medical Centers (VAMCs) in Little Rock, Arkansas, Muskogee, Oklahoma, and Oklahoma City, Oklahoma, dated through July 2014.  However, a review of the Veteran's eFolders reveals that they contain no VA treatment records from the Oklahoma City VAMC dated after May 6, 2014.  They contain no VA treatment records from the Muskogee VAMC dated after April 25, 2014.  

Thus, it appears that there exist records of relevant VA medical treatment of the Veteran that have not been associated with the record before the Board.  Statutes and regulations require that VA assist a claimant by obtaining medical records that are necessary to make a decision on a claim.  VA treatment records are deemed to be constructively of record in proceedings before the Board.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Thus, in this case the proper adjudication of the issues on appeal requires a remand for development.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the record copies of all outstanding VA treatment records, to include those from the Oklahoma City VAMC dated after May 6, 2014, and those from the Muskogee VAMC dated after April 25, 2014.  

2.  Then, undertake any development indicated by the additional VA treatment records, to include any VA examinations.  

3.  Then, readjudicate the Veteran's claim.  If any of the benefits sought on appeal remain denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs