Case 1800355

MARK D. HINDIN · 2018 · Case ID: 1800355

MIXED

Summary

The veteran, who served in the Army from October 2003 to March 2004 and in the Marine Reserves, appeals the denial of earlier effective dates for service connection for residuals of a right knee patellar fracture and eczematous dermatitis, and the denial of service connection for a left inguinal hernia. The veteran's initial claim in October 2006 was deemed abandoned due to failure to respond to VA requests for information, including DD 214 and service medical records, within the one-year timeframe. Despite subsequent communications and a claim to reopen in April 2008, the Board found the VA fulfilled its duty to assist and that the earliest effective date for the granted conditions was April 15, 2008, the date of the reopened claim. For the left inguinal hernia, the veteran reported onset of symptoms in 2006 and diagnosis in 2007 during service. A December 2011 VA examiner opined the hernia was likely service-related, while a later August 2013 VA examiner opined it was less likely than not service-related, citing lack of in-service documentation and a different cause. However, a May 2015 private physician opined the hernia occurred in service and was service-related. The Board found the December 2011 VA opinion and the May 2015 private opinion most probative, resolving doubt in the veteran's favor to grant service connection for the left inguinal hernia. The claims for earlier effective dates for the knee and skin conditions were denied.

Rationale

Claim abandoned due to failure to respond to VA requests for evidence; VA fulfilled duty to assist; Effective date cannot be earlier than reopened claim date

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-47 071A

Full Decision Text

Citation Nr: 1800355
Decision Date: 01/04/18 Archive Date: 01/19/18

DOCKET NO. 10-47 071A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland

THE ISSUES

1. Entitlement to an effective date prior to April 15, 2008, for the grant of service connection for the residuals of right knee patellar fracture.

2. Entitlement to an effective date prior to April 15, 2008, for the grant of service connection for eczematous dermatitis, atopic and xerosis of the skin.

3. Entitlement to service connection for left inguinal hernia.

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and spouse

ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel

INTRODUCTION

The Veteran had an initial period of active duty for training from October 2003 to March 2004. He also had additional service in the Marine Reserves, to include inactive duty training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February and June 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland and Cleveland, Ohio, respectively, which in pertinent part, granted service connection for eczematous dermatitis, atopic and xerosis of the skin, and service connection for residuals of right knee patellar fracture, each with a 10 percent rating assigned from May 15, 2008, and denied service connection for blood in the urine.

The Baltimore RO has retained jurisdiction in this case.

The Veteran provided testimony before the undersigned at a hearing at the Board in August 2011. A transcript is of record.

These issues were previously before the Board in November 2011 and September 2015. In September 2015, the Board granted an earlier effective date of April 15, 2008, for service connection for eczematous dermatitis, atopic xerosis of the skin and service connection for residuals of right knee patellar fracture. The Board also remanded the claim to service connection for a disability manifested by blood in the urine and hernia.

In a rating decision, the RO granted the claim for service connection for prostatitis. This is considered a complete grant of the benefit sought on appeal. However, the claim for service connection for hernia has been returned to the Board.

Additional information has been submitted in support of the Veteran's claims since the issuance of the most recent supplemental statement of the case. The Veteran's representative waived initial RO review of these records in a December 2017 brief to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

FINDINGS OF FACT

1. In letters to the Veteran dated in October 2006 and January 2007, the RO requested that the Veteran submit information pertaining to his separation from active service, by he did not provide this information within a year of the requests.

2. The Veteran submitted new claims for service connection for a right knee disability and a skin disability that were received on April 15, 2008.

3. The Veteran's left inguinal hernia manifested from an injury incurred during a period of INACDUTRA.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to April 15, 2008, for the grant of service connection for the residuals of right knee patellar fracture have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.158, 3.400 (2017).

2. The criteria for an effective date prior to April 15, 2008, for the grant of service connection for eczematous dermatitis, atopic and xerosis of the skin have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.158, 3.400 (2017).

3. The criteria for entitlement to service connection for left inguinal hernia have been met. 38 U.S.C. §§ 101, 1111, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Earlier Effective Dates

The Veteran contends
8, for the grant of service connection for eczematous dermatitis, atopic and xerosis of the skin have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.158, 3.400 (2017).

3. The criteria for entitlement to service connection for left inguinal hernia have been met. 38 U.S.C. §§ 101, 1111, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6, 3.304 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Earlier Effective Dates

The Veteran contends that he is entitled to an effective date of September 22, 2006 for service connection for his right knee and skin disabilities; because he submitted his initial claim on this date, but that VA failed to act. The Veteran further contends that he did respond to a January 2007 letter, and did not abandon his claim.

The Veteran additionally contends that VA failed in its duty to assist him in the development of the initial claim when it informed him via letter that his service records were requested, but VA actually stopped processing his claim when the VA requested material from the Veteran and he failed to provide the requested material.

The record confirms that the Veteran's Form 21-526, Veteran's Application for Compensation or Pension was received on September 22, 2006. His claimed disabilities included itching of the skin and knee injury. In the section of the form regarding active duty, the Veteran said that he first entered active duty in July 2003, and that he remained on active duty. He also indicated he was currently assigned to an active reserve unit, Rations Company. In the section regarding reserve service, the Veteran said he entered reserve service in March 2004 and left it in August 2006.

In an October 2006 email, VA attempted to obtain the Veteran's service medical records. A negative response was received along with guidance to request the records from the Veteran's present unit. An October 2006 SHARE print screen showed the date the Veteran entered active duty service, but the date of his release of active duty was not shown.

In October 2006, the RO sent the Veteran a letter stating that it was working on his claims. The Veteran was requested to send the original or a certified copy of his DD 214 or other separation papers for all periods of service. He was also requested to send any military medical records in his possession. He was notified that he had up to one year from the date of the letter to submit the information and evidence necessary to substantiate his claim.

The Veteran failed to report for a scheduled VA examination in December 2006.

A January 2007 letter to the Veteran also requested the original or a certified copy of his DD 214 or other separation papers for all periods of service. The letter further notified the Veteran that the RO requested copies of treatment records and other evidence from the Veteran's unit, RATIONSCO 3TH UPBN 4THMLG.

A second January 2007 letter to the Veteran acknowledged the receipt of his claim. He was informed that the claim could not be processed until he provided the date that he was being discharged from active service. Once again the letter requested the original or a certified copy of his DD 214 or other separation papers for all periods of service.

The next communication from the Veteran was received and date stamped April 15, 2008. He noted his previous claim and the requests to submit military records. The Veteran said that he was enclosing those records and requested that his claim be reopened. The Veteran did not provide the date discharged from active service or the place he would be discharged from military service; therefore, the RO's request for this information could not be taken as the reason for the Veteran's delayed response.

A February 2010 rating decision granted service connection for the residuals of right knee patellar fracture and eczematous dermatitis, atopic and xerosis of the skin, with an effective date of May 15, 2008. This decision explained that the basis for the effective date was that the Veteran was still on active duty at the time of his original October 2006 claim, and that May 15, 2008, was the day following his discharge from active service. The Veteran initiated the current claim by submitting a notice of disagreement with the effective date in March 2010.

VA's duties, where triggered, have been fulfilled. In each instance, as it became apparent that there may be any information, or medical or lay evidence, not previously provided to VA, that may have been necessary to substantiate the Veteran's claims, VA notified the Veteran both of the necessary information, and also of which evidence he was to submit, and
2008. This decision explained that the basis for the effective date was that the Veteran was still on active duty at the time of his original October 2006 claim, and that May 15, 2008, was the day following his discharge from active service. The Veteran initiated the current claim by submitting a notice of disagreement with the effective date in March 2010.

VA's duties, where triggered, have been fulfilled. In each instance, as it became apparent that there may be any information, or medical or lay evidence, not previously provided to VA, that may have been necessary to substantiate the Veteran's claims, VA notified the Veteran both of the necessary information, and also of which evidence he was to submit, and which evidence VA would attempt to obtain on his behalf. The RO did this in numerous notice letters to the veteran. In particular, the RO notified him in October 2006, January 2007, and another letter in January 2007 that requested additional evidence from him before his claim would be processed.

The veteran not only failed to respond to the RO's request to provide additional evidence, he failed to respond at all. In such cases, the U.S. Court of Appeals for Veterans Claims (Court) has held that we need not consider whether VA's duty to assist requires that VA do more, because the veteran never even responded to VA. Morris v. Derwinski, 1 Vet. App. 260 (1991) (VA never able to adjudicate claim because appellant failed to respond to VA's request for evidence. Section 3.158(a) was specifically promulgated to address this point by deeming that claimants who fail to respond to requests for evidence within one year are deemed to have abandoned their claim.)

The Veteran asserted for the first time before the U.S. Court of Appeals for Veterans Claims (Court) that he did respond to the January 2007 letters both in person and via mail; however, there is no evidence in the file that he Veteran responded to the January 2007 letters. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties". United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This means that there is a presumption that the Secretary properly discharged his official duties by properly handling claims submitted by the Veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary". Statements made by the veteran are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). In this case, there is no evidence, other than the Veteran's recent contention to show that he responded to the request for information and the Secretary mishandled the claim by failing to properly file that response or take further action.

Additionally, no contention has been made that a response to the January 2007 letters contained the requested information. Moreover, in April 2008, the Veteran sent the RO his VCAA Notice Acknowledgement along with his claim to reopen and his service treatment records. This further demonstrates that this was the first communication from the Veteran since the RO's request for information.

The Veteran created confusion over his active service in his original application. VA did not gain clarity of his active and reserve service status until the Veteran gave detailed testimony regarding the dates of his various types of service before the undersigned in August 2011. The Veteran understood when he was on active versus reserve status as this was his original basis for his claim for an earlier effective date for his claims for service connection for right knee and skin disabilities. The January 2007 letter requested he provide the date he was to be discharged from active service. The Veteran knew he was not on active service and failed to provide the date he was discharged from active service. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C. § 5103A(b); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is
the date he was discharged from active service. VA is only required to seek pertinent records that are adequately identified and for which necessary releases are furnished. 38 U.S.C. § 5103A(b); see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not always a one-way street); 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring a claimant to cooperate fully with VA's efforts to obtain federal and non-federal records). If a claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Therefore, the Board finds that the VA fulfilled its duty to assist.

The April 2008 claim to reopen was filed along with additional evidence that allowed the RO to make additional efforts to process the claim; however, the efforts were still marked with confusion over his active service as evidenced by the RO's choice of an effective date for his claim for service connection for his right knee and skin disabilities.

Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under 38 C.F.R. § 3.156(c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." As part of the regulation, the Secretary has included a non-exhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim" or because the claimant did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156(c)(2). "An award made based all or in part on the records identified by paragraph (c)(1)... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3) (2017).

The RO did attempt to develop his October 2006 claim, but was unable to do so because the Veteran did not provide sufficient information for VA to identify and obtain the records. The RO identified and requested specific information in order to continue to develop the claim. That information was received more than one year after it was requested.

In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.

The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i).

Where evidence requested in connection with an original claim or claim to reopen is not furnished within one year after the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). After one year, no further action will be taken until a new claim is received; and the effective date of any subsequent grant will not be earlier than the date of the subsequent claim. Id. Even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012).

Here, the Veteran did not respond within one year of the January 2007 request for information pertaining to his separation from service. The letter notified him that his claim could not be processed without this information. This was the third request between October 2006 and January 2007. Therefore, his October 2006 claim is considered abandoned. The effective date for the grant of service connection could not be earlier than the date of his subsequent claim.

However, the RO apparently continued to operate under the mistaken belief that the Veteran was on active duty
their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220 (2012).

However, the RO apparently continued to operate under the mistaken belief that the Veteran was on active duty subsequent to March 2004 when the May 15, 2008, effective date was assigned by the February 2010 rating decision. In fact, the record shows that May 14, 2008, was the date of the Veteran's final separation from the Marine Reserves, and not from active duty.

In the case of an abandoned claim, the effective date for a subsequent grant of benefits can be no earlier than the receipt of the reopened claim after the abandonment. Fleshman v. Brown, 9 Vet. App. 548 (1996) (appellant's failure to provide the missing evidence within one year after being requested to do so resulted in an abandoned claim under 38 C.F.R. § 3.158(a), a circumstance which cannot give rise to an earlier effective date); aff'd Fleshman v. West, 138 F. 3d 1429 (Fed. Cir. 1998).

Because the Veteran abandoned his October 2006 claim, the earliest possible effective date is the date of receipt of a subsequently filed claim. In this case, the Veteran's first request to reopen his claim was received on April 15, 2008. He was not on active duty at that time, had been separated from service for over four years, and was entitled to receive service connected benefits. In fact, this claim resulted in the grant of service connection. Therefore, the proper effective date for service connection for his right knee disability and skin disability is April 15, 2008.

II. Service Connection

Service connection may be established for disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

In general, every "veteran" shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304.

A "veteran" is defined as a person "who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).

INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(4). Only service department records can establish if
3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a).

INACDUTRA includes duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(4). Only service department records can establish if and when a person served on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet App. 232, 237 (1994).

The Veteran contends that service connection is warranted for inguinal hernia due to in-service training, to include heavy lifting, standing for long periods of time, and overcompensating with the left side of his body due to his service-connected right knee disability as noted during the August 2011 Board hearing.

The record reveals a current diagnosis of left inguinal hernia; hence, the first prong of the service connection analysis, detailed above, is satisfied.

Although the record does not reveal a diagnosis of the condition in service, the Veteran has competently reported that he noted left inguinal swelling after prolonged standing in 2006, and bulging and pain in his groin when he walked or performed physical activity in 2007. See January 2010 VA examination and July 2010 VA treatment record. Further, the record contains a December 2011 VA examiner's opinion that the Veteran's hernia onset in 2006 while the Veteran was in the Marines, and was most likely caused by or a result of service as the hernia was first noted prior to discharge. This opinion was based on a familiarity with the Veteran's condition and statements concerning the nature of his service, as well as a review of the Veteran's claims file. Further, it accords with the Veteran's consistent and credible statements. This opinion is given significant probative weight.

In August 2013, another VA examiner noted that the Veteran reported to sick call in 2007 when he noticed a bulge in the left groin when he coughed or exercised and a left inguinal hernia was diagnosed. The examiner opined that the Veteran's hernia was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner further opined that there was no relationship between his 2005 injury during training and the inguinal hernia because there was no documentation of the hernia or symptoms at his examination for his right knee injury and the hernia was on the opposite side as his right knee fracture. The examiner then provided causes for inguinal hernias. The Veteran has contended that heavy lifting performed in service caused his inguinal hernia, and this was a listed cause of inguinal hernias, but the examiner did not provide an explanation as to how these causes made the Veteran's claim less likely than not related to service.

In a December 2015 addendum opinion, the examiner restated his August 2013 opinion, and provided an additional opinion that the Veteran's hernia clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness because his hernia was not fixed until 2007 and there were no documented events that could have aggravated the natural history during his active duty service. The examiner specifically noted that the Veteran's knee injury had no relationship to the hernia three years later. This opinion incorrectly states that the Veteran's hernia was fixed in 2007 when this was actually the date of diagnosis and the hernia has yet to be repaired. The opinion also does not address the Veteran's lay statements regarding onset of his hernia and provides a conclusory statement without explaining how the knee injury is not related to the hernia. This opinion is given very little probative weight.

In May 2015, the Veteran's private physician examined the Veteran and noted that the left inguinal hernia began in 2007 while lifting heavy objects in the Marine Corps. The examiner opined that the Veteran's hernia occurred while he was in the Marine Corps and is service-related. The examiner noted that the claims file was reviewed and the Veteran's lay statements were considered; therefore, this opinion is given significant probative weight as well.

As such, the December 2011 VA examiner's opinion along with the May 2015 private provider's opinion constitute the most probative evidence in regards to the question of service connection for left inguinal hernia. As such, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to an effective date prior to April 15, 2008, for the grant of service connection for the residuals of right knee patellar fracture is denied.

Entitlement to an effective date prior to April 15, 2008, for the grant of service connection for eczematous dermatitis, atopic and xerosis of the skin is denied.

Service connection for left inguinal hernia is granted.

____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Analyze in VA Law Explorer