Citation Nr: 21003720 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-19 767 DATE: January 22, 2021 ORDER Entitlement to an effective date prior to July 28, 2004 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a stomach disorder is remanded. Entitlement to service connection for renal stones, to include as secondary to service-connected left nephrectomy, is remanded. Entitlement to an initial rating in excess of 30 percent for a left nephrectomy is remanded. Entitlement to an initial rating in excess of 10 percent for a left flank scar is remanded. Entitlement to an initial compensable rating for a chest scar is remanded. Entitlement to an effective date prior to July 28, 2004 for the grant of service connection for a left nephrectomy is remanded. 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) is remanded. Entitlement to an effective date prior to July 28, 2004 for the grant of special monthly compensation (SMC) based on housebound status is remanded. FINDING OF FACT Prior to July 28, 2004, there was no informal or formal claim, or written intent to file a claim, for service connection for posttraumatic stress disorder (PTSD); July 28, 2004 is the date of receipt of the claim for VA compensation purposes. CONCLUSION OF LAW The criteria for an effective date earlier than July 28, 2004 for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5101, 5107(b), 5110, 5111; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to July 1974. His awards and decorations include the Combat Infantryman Badge and Purple Heart, among otehrs. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these issues in February 2013 and in January 2018. The Board notes that the Veteran and his representative have made a number of general, nonspecific allegations regarding failures in the duties to notify and assist, but did not identify any specific failure by VA in this case. In that regard, the United States Court of Appeals for the Federal Circuit held in Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.” See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Accordingly, the Board will not discuss the duties to notify and assist further. 1. An effective date prior to July 28, 2004, for the grant of service connection for PTSD. The Veteran, via his attorney, contends that his service-connected PTSD disability should be assigned an effective date prior to July 28, 2004, when his claim for service connection for PTSD was received. See July 2020 VA Form 9. The question for the Board is whether VA received a claim for PTSD (or any acquired psychiatric disability) within 1 year after separation from service; or whether VA received an informal or formal claim for compensation for psychiatric disability prior to July 28, 2004 that was unadjudicated. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. The effective date based upon a grant of direct service connection will be the day following service from active service or date entitlement arose if claim is received within 1 year after separation from service; or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). However, if the claim is received within one year after separation from service, the effective date of an award will be the day following separation from active service. 38 C.F.R. § 3.400(b)(2)(i). The date of claim is determined by the date it was received by VA. See 38 C.F.R. § 3.1(r). For purpose of this case (before new regulations that took effect March 24, 2015), the law readily allowed filing of informal claims. A “claim” was defined broadly to include 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). Any communication indicating intent to apply for a VA benefit might be considered an informal claim provided it identified the benefit sought. 38 C.F.R. § 3.155 (a). See also Criswell v. Nicholson, 20 Vet. App. 501 (2006); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). The Board concludes that an effective date prior to July 28, 2004 is not warranted. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). In this case, VA received on July 28, 2004 the Veteran’s VA 21-4138 Statement in Support of Claim that he would like to file service connection for PTSD. See July 2004 VA 21-4138 Statement in Support of Claim. The RO subsequently granted that claim for service connection for PTSD effective from the date of the claim’s receipt by VA – July 28, 2004. See December 2004 Rating Decision. VA did not receive a claim within one year after separation from service and there is no communication prior to July 28, 2004 that could be reasonably construed as a claim of entitlement to disability benefits for PTSD or any acquired psychiatric disorder. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Although the Board accepts that the Veteran may have had disability prior to the date of receipt of his application for VA compensation in July 28, 2004, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the effective date for the grant of service connection is appropriately July 28, 2004, and no earlier, for service connection for PTSD. Accordingly, the earlier effective date claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND While the Board regrets further delay, the Veteran’s remaining claims must be remanded for additional development. 2. Entitlement to service connection for a stomach disorder. 3. Entitlement to service connection for renal stones, to include as secondary to service-connected left nephrectomy. 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. Issues 1 – 7: The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for a left nephrectomy, because he underwent a left nephrectomy in service. He contends that his stomach disorder and renal stones resulted from that left nephrectomy in service. With regard to increased rating claims for left flank scar and chest scar, the Veteran contends that such resulted from a shell fragment wound (SFW), after which the Veteran was hospitalized, and the records of such hospitalization have not been obtained. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The January 2018 Board remand directed the RO to obtain service treatment records relating to his 1967 shrapnel wound treatment; however, the Board finds that an adequate search for these records has not been conducted. Additionally, as will be discussed below, no adequate medical opinion has been obtained in regard to the Veteran’s claim for service connection for a stomach disorder has been obtained despite the Board’s January 2018 request. Although some service treatment records (STRs) are of record, they are incomplete, because they do not include STRs from the Veteran’s in-service hospitalization following his SFW. The Board previously remanded the Veteran’s claims in February 2013 and in January 2018 to obtain these records. In January 2018, the Board directed the RO to contact the National Personnel Records Center (NPRC), Records Management Center (RMC) and any other appropriate agency to obtain the Veteran’s STRs and to specifically request records from the 71st Medical Evacuation Hospital in Pleiku, Vietnam for November 6, 1967, and the Camp Zama Hospital in Japan from November 1967 to January1968. The Board also requested the RO to conduct any additional follow-up actions and to 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. However, no adequate search has been conducted or a formal findings of unavailability of such records, outlining the efforts made to obtain these outstanding STRs, has been made. See Stegall, supra. The Board recognizes that the RO has attempted to acquire the Veteran’s STRs through the National Personnel Records Center (NPRC). In January 2019, the RO requested records from NPRC without detailing the records request. See January 2019 DPRIS Response. A January 2019 print-out of the response indicated that complete information was necessary to process the request. Id. Another January 2019 response from NPRC noted a request for dates of service in Vietnam, verification of receipt of Purple Heart, including the date of disability for which it was awarded, and complete STRs. See January 2019 VA 21-3101 Request for Information. However, the file does not contain any additional records. Here, it appears that, although the RO made attempts to obtain the missing records through the NPRC, the language of requests was inadequate as it did not detail the records requested as the Board instructed in its January 2018 remand. Further, no attempt has been made to obtain the records from Records Management Center (RMC) or directly from the Army. Lastly, no formal finding of unavailability of such records has been made, indicating the steps undertaken to obtain outstanding records. Given the above, the Board finds that remand is necessary for the RO to attempt to obtain the relevant STRs. Regarding the Veteran’s claim of entitlement to service connection for a stomach disorder, the Board finds that a remand is also warranted to obtain an adequate medical opinion. To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The Veteran’s VA treatment records, including from October 2005 and August 2017, show a diagnosis of gastroesophageal reflux disease (GERD). See April 2016 and January 2019 CAPRI records. A February 2019 VA examination reflects the Veteran’s reports of daily heart burn, acid reflux, difficulty swallowing, gagging and sometimes nausea, but shows that there was no “diagnosed stomach condition.” See February 2019 C&P Exam. The February 2019 VA examination is inadequate. The examiner did not account for the existing diagnosis of record – that of GERD - as noted above and did not provide a rationale or basis for the opinion. Significantly, the Board’s January 2018 remand instructions requested an opinion as to “any of the Veteran’s current stomach disorders (including GERD).” See also January 2019 Exam Request; see Stegall, supra. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Consequently, remand is necessary for another medical opinion in this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, in a February 2020 representative statement, the Veteran, through his attorney, specifically challenged the competence of the examiner who conducted the February 2019 VA Stomach and Duodenal Conditions examination. See February 2020 NOD. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence, but the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.” Francway v. Wilkie, 940 F.3d 1304, 1307, n. 1 (Fed. Cir. 2019) (en banc). As the Veteran has raised the issue of the competence of the VA examiner, he is entitled to information regarding the qualifications of the examiner. 8. Entitlement to an effective date prior to July 28, 2004, for the grant of entitlement to TDIU. 9. Entitlement to an effective date prior to July 28, 2004, for the grant of SMC based on housebound status. Issues 8 & 9: The matters of entitlement to an effective date prior to July 28, 2004, for the grant of TDIU and SMC are inextricably intertwined with the claims remanded herein. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file, to include any updated VA treatment records for the period from January 2019 to the Present. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Request and obtain complete STRs pertaining to the Veteran, to specifically include STRs relating to his 1967 shrapnel wound treatment, from the NPRC, the Department of the Army or RMC and other potential repositories of such records. 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. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, a formal finding of unavailability should be made and associated with the claim file. 3. After records development is completed, schedule the Veteran for an examination by an appropriate clinician, other than the one who conducted the February 2019 A examination, to determine the nature and etiology of any stomach disorder, to include GERD. A complete medical history should be obtained. The examiner must opine whether any stomach disorder, to include GERD, diagnosed during the appeal period (since 2004) at least as likely as not began in service or is otherwise related to an in-service injury, event, or disease, to include in-service left nephrectomy. A complete rationale is required. Information regarding the qualifications of the examiner, as well as the February 2019 VA examiner, should be provided consistent with Francway, supra. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. P. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.