Citation Nr: 0620826 Decision Date: 07/18/06 Archive Date: 07/26/06 DOCKET NO. 04-14 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than January 31, 2002, for service connection for hepatitis-C. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from October 1967 to October 1970. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an April 2003 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The RO denied service connection for hepatitis in a November 1970 rating decision. The veteran was informed of the determination and of the right to appeal. The veteran did not appeal. 2. On January 31, 2002, the RO received a claim for compensation based on service connection for hepatitis. 3. The AOJ received a supplemental report from the service department documenting hospitalization for hepatitis and a favorable line of duty determination. 4. The veteran's original claim for compensation was received within one year of separation from service. CONCLUSION OF LAW The criteria for the assignment of an effective date of October 24, 1970, for the award of service connection for hepatitis have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA Any VCAA violation is harmless as the case is herein granted. II. Earlier Effective Dates The appellant is seeking an earlier effective date for the award of service connection for hepatitis-C. He essentially contends that the effective date of that award should be the date of his separation from service since he filed a claim for benefits at separation from service. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a). Where service connection is established based upon the receipt of new and material evidence received within an appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q). If new and material evidence is received after final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r). In this case, the appellant filed a claim for compensation for hepatitis at service discharge in October 1970. His application directed the RO to "SEE OFFICIAL MEDICAL RECORDS" and noted hepatitis. A service separation examination report received by the RO showed no complaints or findings for hepatitis or residuals thereof. In a November 1970 rating decision, the RO denied service connection for hepatitis. No appeal was filed and this decision became final. 38 C.F.R. §§ 20.302, 20.1103. On January 31, 2002, the RO received an application for compensation from the appellant. In addition to other disabilities, he claimed hepatitis-C and residuals thereof. He reported that he was diagnosed and treated in service for this condition. In February 2002, private treatment records were received. These records show a diagnosis for hepatitis-C. In July 2002, VA obtained additional service medical records. These records show a diagnosis for infectious hepatitis in December 1968. A physical profile record dated January 1969 reflects that the appellant was recovering from infectious hepatitis. On VA examination in November 2002, hepatitis-C was confirmed. In an addendum to this report, a VA physician noted that the appellant was "formally diagnosed with hepatitis-C in January 2002, having had hepatitis in service that was thought to be infectious." In an April 2003 rating decision, the RO awarded service connection for hepatitis-C, effective from January 31, 2002. This case is controlled by the provisions of 38 C.F.R. § 3.156(c). In November 1970, service connection for hepatitis was denied. At that time, it was noted that the only service record was the discharge examination and that it was negative for hepatitis. However, contained within the same service department envelope was a dental record that clearly indicated that the veteran had a history of hepatitis. Although the decision was supportable, it is abundantly clear that service medical records were outstanding and eventually associated with the file in 2002. The records referenced hepatitis and included a specific hospital record establishing treatment for hepatitis that had been incurred in line of duty. Under any stretch of the imagination, the added service records are new and material evidence. Section 3.156 provides that where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered. Whether a specific evaluation is warranted during the timeframe is a matter that is separately addressed in the same subsection. New and material evidence in the nature of a supplemental report from the service department was received and the former decision has been reconsidered and granted. The effective date of the award of service connection is controlled by the date of the original claim for benefits. The fact that additional evidence was needed for a grant of service connection does not seem to be controlling based upon the wording of the regulation. The regulation establishes that the prior decision shall be reconsidered when service records are the new and material evidence. The fact that current disability and the nexus opinion were associated later has little bearing in the case as the Court has established that the date of receipt of such evidence is not a factor to be considered. McGrath v. Brown, 14 Vet., App.346 (1995). Furthermore, as in McGrath, the VA examiner appears to establish an in-service misdiagnosis of the in- service manifestations. In essence, the veteran had hepatitis C during service and it continued thereafter. ORDER An effective date of October 24, 1970, for service connection for hepatitis is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs