Citation Nr: 1754745 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-31 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for irritable bowel syndrome (IBS). 2. Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for right hip arthritis. 3. Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for chronic groin pain (claimed as sore joints). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1980 to October 1981 and from May 1984 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for IBS, right hip arthritis, and chronic groin pain, respectively, effective December 27, 2001 (the date of claim). In May 2017, the Veteran appeared pro se for a central office hearing in Washington, D.C. before the undersigned. A transcript of that proceeding has been associated with the record. Parenthetically, the Board notes that the Veteran also testified at a hearing (related to the separate issues of service connection) in February 2007 before another member of this Board. A transcript of that proceeding has also been associated with the record. FINDINGS OF FACT 1. The Veteran filed an original claim of entitlement to service connection for IBS (claimed as stomach pain) on December 27, 2001. 2. The Veteran filed an original claim of entitlement to service connection for right hip arthritis on December 27, 2001. 3. The Veteran filed a petition to reopen a claim of entitlement to service connection for chronic groin pain (claimed as sore joints) on December 27, 2001. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 27, 2001, for service connection of IBS have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date earlier than December 27, 2001, for service connection of right hip arthritis have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for an effective date earlier than December 27, 2001, for service connection of chronic groin pain have not been met. 38 U.S.C. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA's duty to notify was satisfied by letters dated in January 2002 and March 2009. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The Veteran has not identified any other deficiency in VA's notice or assistance duties. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. II. Earlier effective date Legal Principles If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Factual Background As a preliminary matter, the Board notes that a December 1992 rating decision by the RO denied, in pertinent part, the claim of service connection for groin pain; the Veteran did not perfect an appeal with respect to this issue. As such, the decision became final. In December 2001, the Veteran filed an original claim of entitlement to service connection for stomach pain, right hip pain, and sore joints. As discussed below, December 2001 was subsequently considered as the date the Veteran filed a petition to reopen a previously denied claim of entitlement to service connection for groin pain. At the February 2007 hearing, the Veteran indicated, in pertinent part, that although he previously characterized his prior claim as groin pain, he was actually referring to sore joints, i.e., hip pain in the groin area, and now sought to reopen the claim. Based on the foregoing, the Board recharacterized the claim as entitlement to service connection for sore joints (characterized as groin pain), and directed the Agency of Original Jurisdiction (AOJ) to adjudicate the issue of whether new and material evidence sufficient to reopen the previously disallowed claim of service connection for groin pain had been submitted. As indicated, an August 2010 rating decision by the RO granted entitlement to service connection for IBS (rated as 10 percent disabling from December 27, 2001), right hip arthritis (rated as 10 percent disabling from December 27, 2001), and chronic groin pain (rated as noncompensable from December 27, 2001). In February 2011, the Veteran filed a notice of disagreement (NOD), in which he asserted entitlement to an effective date earlier than December 27, 2001, for service connection for IBS, right hip arthritis, and chronic groin pain, respectively. Specifically, the Veteran indicated entitlement to retroactive benefits under the provision of 38 C.F.R. § 3.816. At the May 2017 hearing, the Veteran indicated, in pertinent part, his belief that he filed claims of service connection for groin pain and right hip immediately after separation from service. He reported that his claims had been denied in 1992; however, he did not recall whether or not he appealed that decision. Analysis The Board has considered the propriety of the December 27, 2001, effective date for the Veteran's service-connected IBS, right hip arthritis, and chronic groin pain, respectively, and finds that there is no legal entitlement to an earlier effective date in this case. In making this finding, the Board notes that a December 1992 rating decision denied, in pertinent part, the claim of service connection for groin pain. The Veteran did not perfect an appeal with respect to this issue, nor was additional evidence submitted within the one year appeal period. Accordingly, the December 1992 is final. In December 2001, the Veteran filed an original claim of entitlement to service connection for stomach pain, right hip pain, and sore joints (subsequently recharacterized as a petition to reopen prior final denial of groin pain). There was no claim filed (formally or otherwise) prior to December 27, 2001, for these conditions. The Board has considered the Veteran's statements regarding retroactive benefits under 38 C.F.R. § 3.816. In that regard, the Board notes that the provisions of 38 C.F.R. § 3.816 are not applicable in this case. See generally, 38 C.F.R. § 3.309. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran's claim for an earlier effective date for service connection of IBS, right hip arthritis, and chronic groin pain, respectively. ORDER Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for IBS is denied. Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for right hip arthritis is denied. Entitlement to an effective date earlier than December 27, 2001, for grant of service connection for chronic groin pain (claimed as sore joints) is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs