Citation Nr: 18155982 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-49 333 DATE: December 6, 2018 ORDER Entitlement to an effective date prior to February 9, 2010 for the grant of service connection for residuals of a groin strain (groin strain) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable initial rating for a groin strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of status post open cholecystectomy with ligation of cholecystoduodenal fistula (status post cholecystectomy) is remanded. (The issues of entitlement to service connection for a back disability and a disability manifested by memory loss are addressed in a separate decision.) FINDING OF FACT The Veteran’s original claim for service connection for a groin strain was received by VA on February 9, 2010; there were no formal or informal claims prior to that date. CONCLUSION OF LAW The criteria for an effective date prior to February 9, 2010 for the grant of service connection for a groin strain have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1976 to February 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012). Regarding the Veteran’s groin strain, a September 2016 rating decision granted service connection effective February 9, 2010 and assigned a noncompensable rating. The Veteran submitted a notice of disagreement (NOD) in October 2016 regarding the assigned effective date and initial rating. The RO issued a Statement of the Case (SOC) on November 17, 2016 and the Veteran submitted a VA Form 9 that was received on December 12, 2016. As the Veteran’s substantive appeal was timely and the appeal was perfected, the Board has jurisdiction to consider these issues and they have been listed on the title page. Although the Veteran originally filed a for claimed service connection for PTSD, treatment records also indicate other diagnoses of adjustment disorder, major depressive disorder, and depressive disorder without psychosis. Accordingly, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran’s claim has been expanded to include service connection for an acquired psychiatric disorder. In April 2016, the Veteran testified at a hearing before another VLJ regarding the issues of entitlement to service connection for back and a disability manifested by memory loss. Nevertheless, as the April 2016 hearing did not address the issues addressed in herein, a panel decision is not required. 1. Entitlement to an effective date prior to February 9, 2010 for the grant of service connection for a groin strain The effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 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 or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2) (2018). On February 9, 2010 VA received a VA Form 21-526 requesting service connection for “leg pain.” An August 2016 Board decision granted service connection for a groin strain. The Board decision was effectuated in a September 2016 rating decision, with an effective date of February 9, 2010. After thoroughly reviewing the record, the Board finds that prior to February 9, 2010, there were no pending and unadjudicated claims for service connection for a groin strain. While the Veteran has requested an earlier effective date, he did not indicate why an earlier effective date was warranted. Specifically, he has not identified any claim for service connection for a groin strain or leg pain prior to February 9, 2010. Accordingly, February 9, 2010, the date of receipt of the Veteran’s original claim for service connection, is the appropriate effective date for service connection. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 2. Entitlement to a compensable initial rating for a groin strain is remanded. 3. Entitlement to a TDIU is remanded. 4. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for status post cholecystectomy is remanded. The evidence indicates there may be outstanding relevant VA treatment records. A September 30, 2016 VA treatment record indicates that the Veteran was to return for follow up appointment at the Tampa VA Medical Center on January 12, 2017. VA treatment records subsequent November 15, 2016 have not been associated with the claims file. Additionally, a September 10, 2002 VA treatment record notes that the Veteran had received treatment at the Northampton VA Medical Center in September 2002. To date, VA treatment records from the Northampton VA Medical Center have not been associated with the claims file. Finally, VA treatment records from February 6, 2014, October 18, 2013, and August 19, 2011 indicate non-VA records, home health records, and emergency room records had been scanned into VistA Imaging. It does not appear that these records have been associated with the claims file. Accordingly, a remand to obtain the aforementioned records is required. The record also indicates that there are outstanding private treatment records. In April 2003, the Veteran provided a VA Form 21-4142 authorizing VA to obtain treatment records from Dr. Miller of Mental Health Care Inc. On his August 2013 VA 21-526, the Veteran reported receiving treatment at Gardner state prison. Finally, a March 2004 VA examination report notes that the Veteran received private primary care from Dr. Gadea. To date, records from the identified private providers have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain the aforementioned records. Regarding the Veteran’s psychiatric claim, the record contains a February 2015 formal finding that there was insufficient information available to verify the Veteran’s reported stressor of being assaulted during service. The formal findings noted that the Veteran had failed to respond to the July 11, 2014 request to submit a completed VA Form 21-0781a. However, the Board notes that the form was mailed to an outdated address rather than the Veteran’s address of record at that time. Accordingly, on remand, the Veteran should be asked to submit a completed VA Form 21-0781a. Additionally, the Veteran’s service personnel records indicate that he was repeatedly counseled about, and eventually discharged due to, his negative attitude. As the Veteran reports that his attitude change was an early manifestation of his current psychiatric disability, a VA examination and opinion are warranted. The Veteran’s last VA examination for his groin strain was in June 2012. As an October 17, 2016 VA treatment record notes that the Veteran reported progressively worsening groin pain, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity of the condition. In December 2014, the Veteran submitted a VA Form 21-8940 indicating that he had last worked as a security guard and had been unemployed since 1976. Nevertheless, VA treatment records from August 29, 2012 and April 16, 2015 note that the Veteran had worked as recently as 2002 and had prior occupational experience as a teacher and counselor. Accordingly, on remand the Veteran should be requested to submit a completed VA Form 21-8940 detailing all prior full and part-time employment. The Veteran is advised that the failure to return a fully completed form could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that “the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”). Regarding his section 38 U.S.C. § 1151 claim, a VA opinion was obtained in February 2015. The clinician opined that there was no evidence that carelessness on the part of VA care resulted in an additional disability. In support of that finding, the examiner noted that abdominal examination was within normal limits. A VA treatment record from June 22, 2016 notes that the Veteran reported ongoing abdominal pain, loose stools, and mucoid discharge. He was assessed with “chronic abdominal symptoms” and possible “post-surgical symptoms.” As VA treatment records indicate a possible disability related to the Veteran’s cholecystectomy, another VA examination and opinion are warranted. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his claimed disabilities, including Dr. Miller of Mental Health Care Inc, Dr. Gadea, Gardner state prison, and any other correctional facility where he was incarcerated. After securing any necessary releases, request any relevant records identified. In addition, obtain VA treatment records dated since November 15, 2016, all treatment records from the Northampton VA Medical Center, and the VistA Imaging records referenced in the February 6, 2014, October 18, 2013, and August 19, 2011 VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Send the Veteran a notice letter and VA Form 21-0781a to be completed in connection with his claim for service connection for PTSD based on an alleged in-service personal assault. 3. Ask the Veteran to fully complete a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to include detailing all education and training as well as all full-time or part-time employment. 4. Schedule the Veteran for a VA muscle injuries examination to determine the current severity of his groin strain. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the groin strain should be reported. The examiner should address the functional impact the Veteran’s groin strain. 5. Schedule the Veteran for a VA PTSD examination. The claims file should be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders present and then respond to the questions presented: (a.) If the Veteran is diagnosed with PTSD, the examiner should indicate the stressor(s) upon which the diagnosis is based. If PTSD based on personal assault / MST is diagnosed, the examiner should render an opinion as to whether there is evidence of changed behavior after the Veteran's alleged assault, or any other evidence of markers, which would be consistent with the alleged trauma. (b.) For each diagnosed psychiatric condition other than PTSD and personality disorders, to include adjustment disorder, major depressive disorder, and depressive disorder without psychosis, noted in treatment records, state whether it is at least as likely as not that the conditions arose during service or are otherwise related to the Veteran’s military service. A complete rationale for all conclusions and opinions should be provided. 6. Schedule the Veteran for a VA gallbladder conditions examination. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests or studies deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should state: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's open cholecystectomy with ligation of cholecystoduodenal fistula resulted in any additional disability. In so opining, the examiner should address the Veteran’s assertion that the open cholecystectomy surgery resulted in an intestinal perforation and the June 22, 2016 VA treatment record noting that the Veteran reported ongoing abdominal pain, loose stools, and mucoid discharge and was assessed with chronic abdominal symptoms and possible post-surgical symptoms. (b.) If so, whether it is at least as likely as not that the proximate cause of any additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment, or whether the proximate cause of any additional disability was due to an event not reasonably foreseeable (one that a reasonable health care provider would not have considered an ordinary risk of the treatment provided). In addressing whether any additional disability was due to an event not reasonably foreseeable, the examiner should address the June 29, 2012 signed informed consent. A complete rationale for all conclusions and opinions should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson