Citation Nr: 0002290 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-18 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to August 27, 1993, for an award of service connection for right testicle injury, claimed as atrophy. Entitlement to an effective date prior to August 27, 1993, for an award of special monthly compensation on account of loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active military service from December 1963 through September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision of the Department of Veterans Affairs (VA), which denied an effective date prior to August 27, 1993, for the award of service connection for right testicle atrophy and denied an effective date prior to August 27, 1993, for the award of special monthly compensation on account of loss of use of a creative organ. The Board notes that the issue on appeal is more accurately stated as described on the title page of this decision. FINDINGS OF FACT 1. The veteran sustained a gunshot wound in combat in November 1965. 2. The service medical records obtained and associated with the file at the time of a February 1967 rating decision did not include any clinical records regarding a gunshot or combat wound. 3. Additional original service medical records obtained in 1998 establish that the veteran sustained a missile wound to the scrotum, with an entry wound on the left side and exit wound on the right side. 4. The medical evidence and opinions of record establish that the veteran lost the use of the right testicle because the November 1965 gunshot wound severed the blood flow to the right testicle. CONCLUSIONS OF LAW The appropriate effective date for a grant of service connection for right testicle injury, claimed as atrophy, is September 23, 1966. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156, 3.400 (1999). The appropriate effective date for an award of special monthly compensation on account of loss of use of a creative organ is September 23, 1966. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On a claim submitted in September 1966, the veteran stated, in block 18, VA Form 21-526, as to the nature of the injuries on which the claim was made, "While stationed in Vietnam I was wounded--Nov. 17, 1965 (gunshot wound left leg)-was picked up by helicopter. In Base Hosp. for sometime (sic) and transferred to Great Lakes, Ill. and was separated from service there." The service medical records obtained by the RO included: (1) an October 1963 induction examination; (2) three pages of clinical records dated from December 1963 through May 1965; (3) a March 1964 report of radiologic examination of the chest; (4) an immunization record with entries from December 1963 through July 1965; and, (5) a health record abstract reflecting entries from December 1963 through July 1965. On VA examination conducted in November 1966, the veteran reported that he was hospitalized for seven or eight months for treatment of a gunshot wound to the left leg. The veteran favored his left leg and reported use of a cane when walking long distances. The orthopedic examiner described an entrance wound "located in the groin near the scrotum," among other scars. The examination of the genitourinary system was reported as "normal." Service connection for a gunshot wound, left leg, with injury to Muscle Groups XV and XVII and residual shortening of the left leg, and for paresthesias, left leg, was granted, in a rating decision issued in February 1967. There is no evidence of record indicating that the veteran was notified that service medical records pertaining to a November 1965 gunshot wound were not of record at the time of a February 1967 rating decision. There is no evidence of record to indicate that the February 1967 rating decision was provided to the veteran. Moreover, the evidence of record does not reflect that the veteran was provided a list of the disabilities for which he was granted service connection. In fact, the evidence currently in the claims file reflects only that the veteran was notified in March 1967 that he had been awarded a 50 percent disability evaluation and that the monetary amount of his compensation was $113 monthly. That March 1967 letter reflects that several VA forms were provided to the veteran, but the list of enclosures does not include the rating decision (VA Form 21-6796). The February 1967 rating decision noted that the veteran's DD214 established that he sustained a gunshot wound to the left leg. The rating decision did not discuss any of the veteran's service medical records relevant to his November 1965 combat injury. Thus, the rating decision, if provided to the veteran, might have alerted him that complete service medical records had not been obtained, or might have alerted him that he had not been granted service connection for residuals of a wound to the scrotum. By a claim submitted in October 1993, the veteran sought service connection for atrophy of the right testicle. The claim was denied in a February 1994 rating decision. VA clinical records dated from November 1993 through April 1997 disclose that the veteran sought urology evaluation in November 1996. Atrophy of the right testicle was noted. The report of a VA radiologic examination of the right testicle conducted in January 1997 discloses that the veteran reported a long history of scrotal swelling after he incurred a gunshot wound in service. The right testicle was atrophic. Circulation to the "presumed" right testicle could not be demonstrated. By a rating decision issued in April 1997, the RO determined that the veteran had not submitted new and material evidence to reopen the claim for service connection for atrophy of the right testicle, claimed as secondary to a service-connected gunshot wound. In May 1997, the veteran submitted private clinical records dated in June 1985. Those records disclose a diagnosis of atrophic testicle, right side, from trauma. On VA examination conducted in July 1997, the veteran reported that the course of a bullet which injured his left leg and Muscle Groups XV and XVII also affected his left hemiscrotum. The examiner reported that VA ultrasound in January 1997 disclosed that there was no blood flow to the area where the right testicle should have been. VA examination conducted in February 1998 confirmed that there was an old scar on the left hemiscrotum, very near the midline. There was a second scar on the back side of the scrotum on the right. The examiner provided an opinion that this pattern of injury very likely caused disruption of blood flow to the right testicle, with subsequent atrophy. The examiner further noted that, even if direct injury did not occur, the blast from the high-caliber assault rifle, an SKS, the type of weapon with which the veteran was injured, could have injured the right testicle. By a rating decision issued in March 1998, service connection for right testicle atrophy was granted, along with an award of special monthly compensation under the 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350, on account of loss of use of a creative organ. The effective date of these awards was assigned as February 14, 1997. In a subsequent rating decision, issued in September 1998, the RO assigned an effective date of August 27, 1993. In assigning this date as the effective date for the grant of service connection and SMC for right testicle atrophy, the RO explained that the August 1993 claim was the veteran's initial claim for injury to the right testicle, and thus an effective date for the award prior to that claim could not be granted. The veteran, however contends that he is entitled to an effective date prior to August 1993, and argues that he is entitled to an effective date of September 23, 1966, the same date on which he was granted service connection for other injuries connected to the gunshot wound. The veteran contends in particular that he has been penalized because service department records which would have documented this injury were not obtained at the time of the initial rating decision in February 1967. The veteran further contends that, if he had known that the service medical records were not obtained, or if he had known that he had been granted service connection only for the injuries to his left leg, he would have made further attempts to obtain his SMRs (service medical records) or to appeal the 1967 rating decision. A letter from the National Personnel Records Center to United States Senator Herb Kohl, dated in April 1998, reflects that the veteran's clinical records from 1965 and 1966 were located. The clinical cover sheet to those records clearly states that the veteran sustained a missile wound to the left scrotum. The clinical cover sheet further reflects that the veteran was discharged from the hospital, after 197 inpatient days and 101 days on sick leave from the hospital, in September 1966. The initial record of treatment in the field, a November 1965 operative note, reflects that the veteran's immediate treatment consisted of bilateral scrotal exploration with evacuation of a hematoma and testis repair, together with insertion of a pin in the veteran's fractured tibial tubercle. A September 1966 discharge summary also reflects that a wound of entrance at the gluteal area and a wound of exit through the scrotum were irrigated and debrided in the field prior to hospital admission. The November 1965 hospital admission note reflects that the veteran sustained a gunshot wound which, after causing a non- comminuted transverse fracture of the femur, exited the medial thigh at the scrotal crease and passed through the scrotum from left to right, exiting at the right anterolateral scrotum. A January 1966 treatment note refects that the veteran continued to have drainage from the anterosuperior right hemiscrotum. Testicular injury was suspected. The Board notes that the RO has awarded the veteran service connection for atrophy of the right testicle under 38 C.F.R. § 4.115, Diagnostic Code 7523. The RO indicated, in explaining why an effective date as of the veteran's original claim, in 1966, was not appropriate, accurately noted that there was no medical evidence of atrophy at that time. However, the Board also notes that 38 C.F.R. § 4.115, Diagnostic Code 7524, which provides the evaluative criteria for removal of a testicle, may also be applicable to this claim. The medical evidence in this case reflects that the atrophy of the right testicle was subsequent to, i.e., a consequence of, the loss of the blood supply to the area as a result of the initial gunshot wound. Under the circumstances of this case, the Board finds that a gunshot wound which severed the blood supply to the right testicle, in effect, removed that creative organ. Thus, this disability may be evaluated by analogy to removal under Diagnostic Code 7524. The medical evidence does not establish when atrophy of the veteran's testicle first became medically diagnosable, so as to warrant an award of SMC under Diagnostic Code 7523. The evidence does establish that the veteran effectively lost the use of the right testicle in service when the blood supply was severed, so as to warrant an award of SMC under Diagnostic Code 7524, without regard to how long the process of atrophy thereafter required. After the RO made its determination as to the appropriate effective date for this claim, the United States Court of Appeals for the Federal Circuit (Federal Circuit) further identified VA's duty to assist claimants when service medical records have been identified as relevant but are not obtained, and discussed the effect of failure to obtain such records. Hayre v. West, 188 F.3d 1327, 1331-32 (Fed. Cir. 1999). The Federal Circuit found that "a single request for pertinent SMRs specifically requested by the claimant and not obtained by the RO does not fulfill the duty to assist." In particular, the Federal Circuit stated that "[t]he duty to assist does not end upon the RO's submission of requests for records. . . . When a veteran's SMRs are unavailable, the VA's duty to assist and the Board's duty to provide reasons for its findings and conclusions are heightened," because "the veteran cannot reasonably be expected to have such records." Id. The Federal Circuit further elaborated that certain requirements were "inherent" in the duty to assist, including a requirement that the Secretary notify the claimant if VA is unable to obtain pertinent SMRs specifically requested by the veteran "so that the claimant may know the basis for the denial of his or her claim; may independently attempt to obtain the SMRs; may submit alternative evidence and/or timely appeal." The Federal Circuit noted that, in cases of "grave procedural error" the Court of Appeals for Veterans Claims "has consistently held that RO or Board decisions are not final for purposes of direct appeal," and cited Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) for the proposition that "where VA has failed to procedurally comply with statutorily mandated requirements, a claim does not become final for purposes of appeal to the [Court of Appeals for Veterans Claims]." Hayre, supra. In a later case, Jones v. West, 194 F.3d 1345 (Fed. Cir. 1999), the Federal Circuit specifically stated, "we have recently held that a veteran, under appropriate circumstances, can attack the finality of an unappealed RO decision by showing that such a decision was based on a breach of the statutory duty to assist." The Federal Circuit cited their decision in Hayre for the proposition that when there is a breach of the duty to assist in which the VA failed to obtain pertinent service medical records specifically requested by the claimant, and failed to provide the claimant with notice explaining the deficiency, the claim does not become final for purposes of appeal. The Board notes that there are numerous similarities between the veteran's claim in this case and the circumstances discussed by the Federal Circuit in Hayre. In this case, the veteran specifically identified the time period of the service medical records which would describe the gunshot wound he received in Vietnam, and residuals thereof. The veteran described where he received the relevant treatment. The veteran described his injury only in general terms, as a gunshot wound, and further stated that the gunshot wound affected his left leg, but he did not identify which portion of the leg was injured, or whether there was muscle, bone, or nerve damage, or other residuals, such as additional injuries to closely-connected parts of the body. The veteran contends that he expected that VA would determine what specific injuries he received based on those records. This contention is consistent with VA's duty to assist. 38 U.S.C.A. § 5107(a). Although the RO has interpreted the veteran's original claim as relating only to left leg injury, the Board notes that that interpretation of the claim was made in the absence of the service medical records. The Board finds that the veteran's claim for service connection for injuries received when, "[w]hile stationed in Vietnam, I was wounded," is sufficient to include a claim for service connection for residuals of injury to the scrotum and testes, where the service medical records, when obtained, reflect that such injury was treated in the field and during hospitalization thereafter. As with the claim considered in Hayre, the RO did not, in this case, notify the veteran that his service medical records had not been obtained, nor, as noted above, does it appear that the RO provided the veteran with notification as to the exact nature of the injuries or disabilities covered by the grant of service connection. Under the Federal Circuit's analysis in Hayre, the Board finds that the February 1967 rating decision did not become final, since the duty to assist had not been fulfilled. The claim before the Board on appeal is, in essence, a determination as to the veteran's original, September 1966 claim. 38 C.F.R. §§ 3.156, 3.400(q). The Board also notes that the Federal circuit's decision in Hayre is consistent with VA regulations at 38 C.F.R. § 3.156(c), which reflect that when new evidence is received consisting of a supplemental report from a service department, a former decision made without the service department records "will be reconsidered," even where there is a prior final decision. Therefore, the appeal before the Board is properly the appeal of an assignment of the effective date following the original grant of service connection based on the claim submitted in September 1966, since, as discussed above, the Board finds that the 1966 claim must be interpreted, in light of the supplemental service department records, as including all residuals of the gunshot wound sustained in November 1965. As such, it is an original claim which was received within one year of the veteran's service discharge. The appropriate effective date for an award under a claim received within one year after the veteran's discharge is September 23, 1966, the day following his discharge or release. 38 U.S.C.A. § 5110(a), (b)(1). Therefore, as the Board has determined that the appropriate effective date for the award of service connection for residuals of injury to the right testicle, claimed as atrophy, is September 23, 1966, it follows that the award of SMC based on loss of use of a creative organ is effective from that same date as well. ORDER The appropriate effective date for a grant of service connection for right testicle injury, claimed as atrophy, is September 23, 1966. The appropriate effective date for an award of special monthly compensation for loss of use of a creative organ is September 23, 1966. WARREN W. RICE, JR. Member, Board of Veterans' Appeals