Citation Nr: 1806119 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-19 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a colon disorder. 2. Entitlement to service connection for a lung disorder, to include residuals of a pneumothorax. 3. Entitlement to service connection for a stomach disorder. 4. Entitlement to an initial disability rating in excess of 30 percent for a left nephrectomy. 5. Entitlement to an initial disability rating in excess of 10 percent for a left flank scar. 6. Entitlement to an initial compensable disability rating for a chest scar. 7. Entitlement to an effective date prior to July 28, 2004, for the grant of service connection for a left nephrectomy. 8. Entitlement to an effective date prior to July 28, 2004, for the grant of service connection for a left flank scar. 9. Entitlement to an effective date prior to July 28, 2004, for the assignment of a 40 percent evaluation for residuals of a shell fragment wound (SFW), muscle group XX, left. 10. Entitlement to an effective date prior to July 28, 2004, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 11. Entitlement to an effective date prior to July 28, 2004, for the grant of special monthly compensation (SMC) based on housebound status. REPRESENTATION Veteran represented by: John F. Cameron, Esq. ATTORNEY FOR THE BOARD M. Moore, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1963 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2005, May 2005, March 2007, and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded these issues in February 2013. The issues of service connection for a stomach disorder, increased ratings for a left nephrectomy, left flank scar, and chest scar, and earlier effective dates for the grant of service connection for a left nephrectomy, TDIU, and SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The evidence does not demonstrate that the Veteran has or had a chronic colon disability or any chronic disability manifested by colon symptoms, including constipation, at any time during the appeal period. 2. The evidence does not demonstrate that the Veteran has or had a chronic respiratory disability at any time during the appeal period. 3. The Veteran filed a claim for service connection for shrapnel wounds to the left chest/flank area in March 1975, within one year of his separation from active duty. 4. The Veteran's left flank scar was present and referenced in November 1975 VA examination performed in response to his March 1975 claim. 5. The Veteran's claim for an increased rating for his residuals of an SFW, muscle group XX, left, was received on July 28, 2004; it is not factually ascertainable that an increase in this disability occurred during the year preceding the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by colon symptoms, including constipation, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 2. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). 3. The criteria for an effective date of July 25, 1974, for the award of service connection for a left flank scar are met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for an effective date prior to July 28, 2004, for the assignment of a 40 percent evaluation for residuals of an SFW, muscle group XX, left, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all of the evidence of record, with an emphasis on the medical evidence pertinent to the claim on appeal. Although all the evidence of record has been thoroughly reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the evidence shows, or fails to show, with respect to the Veteran's claims. I. Duties to Notify and Assist With regard to the claims decided herein, the Board finds that the VA's duty to notify and assist has been met and the Veteran and his representative have not argued otherwise. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir 2011). The AOJ sent adequate notice letters to the Veteran in October 2004 and January 2016. All available and relevant service treatment records and post-service medical records have been obtained. The Board notes that other claims are being remanded to obtain in-service hospitalization records. However, those records are not relevant to the claims denied herein. As such, the Board need not remand these claims to obtain those records. The Veteran was afforded sufficient VA examinations and opinions for his service connection claims in March 2016. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). There is also no indication that his chest scar has worsened since his March 2016 VA examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim). New VA examinations are not needed at this time. II. Merits of the Claims A. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). A review of the medical evidence of record fails to establish a diagnosed colon or respiratory disability at any time during the appeal period or proximate thereto. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran has not identified a disability either. In fact, at his March 2016 VA examinations, he specifically indicated that he did not any diagnosed colon or respiratory disorders. He noted that he experienced constipation but denied any treatment or diagnosis related to this complaint. The examiner also thoroughly examined the Veteran and was unable to provide any diagnosis relating to his colon or lungs. The Board has thoroughly reviewed the Veteran's private and VA treatment records and finds that, while there are complaints of constipation, there are no separate diagnoses related to these complaints, nor are there any respiratory diagnoses. There is simply no medical evidence showing objective findings of any underlying disorder or pathology accounting for the Veteran's constipation or any respiratory symptoms, nor does the Veteran contend that he has been diagnosed with any such disorder or pathology. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of intestinal and respiratory symptoms in the context of a negative physical examination. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran is certainly competent to report his symptoms, he is not competent to attribute those complaints to a particular diagnosis or any diagnosis at all. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2017) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). His assertions are therefore not competent evidence of a diagnosis of a disability manifested by any colon or respiratory symptoms. The Veteran's opinion would also be significantly outweighed by the lack of diagnoses from VA and private physicians, who clearly hold the level of medical expertise to address the nature and etiology of the Veteran's complaints. Accordingly, the first element of Shedden/Caluza is not met for the colon and lung claims. Service connection cannot be granted for a disability manifested by constipation or any respiratory symptoms. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). B. Earlier Effective Date Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). If the claim for service connection is received within one year of a veteran's discharge from service, the effective date of an award of service connection will be the day following discharge from service. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2017); see also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2) (2017). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2) (2012). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). 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) (2017). Nevertheless, a claimant without medical expertise is not expected or required to precisely name the disability for which he seeks service connection, rather VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Although "informal claims" are no longer recognized by VA, prior to March 2015 (i.e., during the pendency of the claims), any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). Similarly, prior to March 2015, a report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157 (2014). Left Flank Scar The Veteran claims that an effective date prior to the currently assigned July 28, 2004 should be assigned for the grant of service connection for a left flank scar. Although not specifically articulated, the basis of his argument appears to be that his initial March 1975 claim for shrapnel wounds included his left flank scar that was present at that time. Under this theory, his left flank scar claim would have been pending since March 1975 and an earlier effective date of July 26, 1974, the day after his separation from service, would be warranted. In this case, the Veteran filed a claim for the residuals and symptoms relating to his in-service shrapnel wounds generally. See Claim, March 1975. He did not limit his claim to his muscle injury or any particular symptom or residual. Rather, he indicated that he intended to file a claim for benefits for all residuals of his SFW. At the time that he filed his claim, the RO provided him with a VA examination. The November 1975 VA examiner noted that the Veteran had a scar on his left flank, just beneath the costal margin, measuring approximately 10cm in length and 1.5cm in width. As this VA examination report noting the scar resulting from the Veteran's SFW was of record at the time of his initial claim, the Board finds that VA was obligated to consider whether the scar warranted consideration of service connection for additional residuals beyond a muscle injury. See Clemons, 23 Vet. App. at 5 (holding that VA must construe a service-connection claim to include any disability that may be reasonably encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim). As the Veteran claimed only service connection for his shrapnel wounds generally and his left flank scar was noted at the time of his initial claim, the Board finds that the implied claim for service connection for a left flank scar remained pending from the initial filing in 1975 until the RO adjudicated it in May 2005. See Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2000) ("A claim for benefits, whether formal or informal, remains pending until it is finally adjudicated." (citing 38 C.F.R. § 3.160(c)). Affording the Veteran the full benefit-of-the-doubt, the Board finds that his March 1975 general claim for service connection for shrapnel wounds constituted a claim for all residuals of his SFW found on examination. This includes the left flank scar noted in the November 1975 examination report. As this claim was filed within one year of the Veteran's separation from service, the appropriate effective date for the grant of service connection for a left flank scar is July 26, 1974. 38 U.S.C. § 5110(b)(1) (2012). The Veteran's claim for an earlier effective date of July 26, 1974 is granted. Muscle Injury A review of the record reveals that the RO chose an effective date of July 28, 2004, for the assignment of an increased evaluation of 40 percent for the Veteran's residuals of a SFW, muscle group XX, left, because this was the date that he filed his claim for an increased rating for his muscle injury. For the Veteran to receive an earlier effective date for this increased rating, the evidence must demonstrate either (1) an informal claim was filed during the period of July 27, 2003 to July 27, 2004, or (2) a factually ascertainable increase in disability occurred during the period of July 27, 2003 to July 27, 2004. No communication was submitted by the Veteran or on his behalf during the one-year period prior to his July 2004 formal increased rating claim. The last communication received from the Veteran prior to his July 2004 increased rating claim was a Report of Contact regarding a lost pension check. This is clearly outside of the one-year period and does not address the muscle injury. As there were no communications received from the Veteran in the one-year period prior to his July 2004 claim, there is nothing that may be construed as an informal increased rating claim. Additionally, the medical evidence is negative for any factually ascertainable increase in disability of the injury to muscle group XX in the one-year period prior to the Veteran's July 2004 formal claim. Notably, there were no VA treatment records relating to the left chest or shoulder for this period. The first medical evidence to show an increase in disability is the January 2005 VA examination. Moreover, the Veteran has not claimed an increased rating in his left muscle group XX injury disability during the one-year period prior to his July 2004 claim. Rather, he has only generally argued for an earlier effective date. As such, there is no evidence showing a factually ascertainable increase in disability for the residuals of a SFW, muscle group XX, left, prior to the current effective date of July 28, 2004. As there are no documents or treatment records submitted that could be construed as an informal claim prior to July 28, 2004, and no competent evidence demonstrating that an increase in disability was factually ascertainable within one year prior to the receipt of the Veteran's claim, the effective date of the assignment of a 40 percent evaluation for SFW, muscle group XX, left, cannot be earlier than the date of receipt of the application which is July 28, 2004. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). Accordingly, the Board finds that the claim of entitlement to an effective date prior to July 28, 2004, for the award of a 40 percent evaluation for SFW, muscle group XX, left, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a colon disorder is denied. Entitlement to service connection for a respiratory disorder is denied. Entitlement to an earlier effective date of July 26, 1974 for the award of service connection for a left flank scar is granted. Entitlement to an effective date prior to July 28, 2004, for the assignment of a 40 percent evaluation for residuals of an SFW, muscle group XX, left, is denied. REMAND Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claims. The Board remanded this case for additional development in February 2013. The AOJ was specifically directed to attempt to obtain treatment records from the Veteran's in-service hospitalization following his SFW. There is no indication that the AOJ attempted to obtain these records. These records are particularly pertinent to the claim for an earlier effective date for the grant of service connection for a left nephrectomy, as that claim may turn on whether the service treatment records show that a left nephrectomy was performed in service, and the service connection claim. As the AOJ failed to follow the Board's remand directives, the earlier effective date for a left nephrectomy and service connection for a stomach disorder claims must be remanded again to obtain any in-service hospitalization records. See Stegall v. West, 11 Vet. App. 268 (1998). With regard to the remaining claims remanded herein, the Board finds that they cannot be adjudicated at this time. Specifically, the claims for increased ratings for a left flank scar and a chest scar cannot be adjudicated until the AOJ implements the Board's above grant of an earlier effective date for the left flank scar. The increased rating for a left nephrectomy claim cannot be adjudicated until the earlier effective date is adjudicated. The remaining earlier effective date claims cannot be readjudicated until all increased rating claims have been finally adjudicated. These issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998). Accordingly, the case is REMANDED for the following actions: 1. Implement the above grant of an effective date of July 26, 1974, for the grant of service connection for a left flank scar, including assigning an evaluation(s) for the entire period. 2. Contact the National Personnel Records Center, Records Management Center and any other appropriate agency to obtain the Veteran's service treatment records relating to his 1967 shrapnel wound treatment. Records should be specifically requested from the 71st Medical Evacuation Hospital in Pleiku, Vietnam for November 6, 1967, and the Camp Zama Hospital in Japan from November 1967 to January 1968. Any additional action necessary to obtain these records, including follow-up action requested by the contacted entity, should be accomplished. If, after making reasonable efforts, the AOJ cannot locate these records, it must specifically document what attempts were made to locate the records, and indicate in writing that further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the Veteran and his attorney of the records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The Veteran and his attorney must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his claimed stomach disability. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that any of the Veteran's current stomach disorders (including GERD) had its onset in service or was otherwise etiologically related to active service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After completing the above actions and any other necessary development, the Veteran's claims should be readjudicated. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs