Citation Nr: 1007016 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-20 808 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than October 13, 2006 for the grant of service connection for chronic low back pain status post multiple laminectomies. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from August 1974 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 RO rating decision. In July 2009, the Veteran, sitting at the RO, testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. FINDINGS OF FACT 1. On December 23, 1996, the RO received the Veteran's original claim of service connection for chronic low back pain status post multiple laminectomy. 2. In a May 1997 rating decision, the RO denied the claim of service connection for chronic low back pain status post multiple laminectomy based on an evidentiary record that did not include service treatment records that were reported to have been destroyed or missing by the National Personnel Records Center (NPRC). 3. In October 2006, the Veteran applied to reopen the previously denied claim of service connection for a back condition. 4. In March 2007, the RO reopened the claim based on the submission of service treatment records showing a nexus with service and granted service-connection for low back pain status post multiple laminectomy claim, effective on October 13, 2006. 5. The service treatment records added to the record in connection with the reopened claim are found to be probative and, when considered with all the evidence, are dispositive of the Veteran's claim of service connection for a low back disability. CONCLUSION OF LAW Following reconsideration of the claim in light of subsequently received service treatment records, an effective date of December 23, 1996 or the date of the original claim is assignable for the grant of service connection for chronic low back pain status post multiple laminectomy. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Since this decision represents a full grant of the issue decided herein, any further discussion of the VCAA is unnecessary. II. Earlier Effective Date Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, a claim re-opened after final disallowance, or a claim for increase "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim, a claim re-opened 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. 38 C.F.R. § 3.156(c) provides: Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section 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 failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c) was amended effective on September 6, 2006. Prior to that date, it provided as follows: (c) 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 by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. On December 23 1996, the Veteran submitted a claim for service connection for a low back condition. In a May 1997 rating decision, the RO denied the Veteran's claim. The decision indicated that the Veteran's service treatment records were unavailable because they had been destroyed in a fire. The Veteran had not provided any evidence in lieu of the service treatment records to show an in-service injury. In October 2006, the Veteran filed a claim to reopen entitlement to service connection for a back condition. In reviewing the record, the Board finds that the RO initially denied the Veteran's claim in May 1997 because it was determined there was no evidence of an in-service injury. The service treatment records were found and service connection for chronic low back pain status post-multiple laminectomy was reopened and granted in March 2007 on the basis that the service treatment records showed nexus to service. The RO assigned an effective date of October 13, 2006. Applying 38 C.F.R. § 3.156(c), the Board finds that the service treatment records were relevant and probative and resulted, in part, in the grant of service connection as was specifically noted in the March 2007 rating decision. Therefore, 38 C.F.R. § 3.156(c) is applicable and the May 1997 rating decision must be reconsidered. The Board notes the change to 38 C.F.R. § 3.156(c) in September 2006. The regulation in effect prior to September 2006 indicated that it was applicable to official service department records, which presumably have been misplaced, and corrections made to service records. The revised regulation is broader. Generally, the effective date of a liberalizing law or VA issue is no earlier than the effective date of the change. 38 U.S.C.A. § 5110. However, here, the change in regulation is a restatement of policy and not a liberalizing law or VA issue. VA does not limit its reconsideration to misplaced service department records. See Vigil v. Peake, 22 Vet. App. 63 (2008) quoting New and Material Evidence, 70 Fed. Reg at 35,388. In Vigil, the United States Court of Appeals for Veterans Claims (Court) made it clear that the regulation in effect prior to September 2006 did not limit the evidence that would allow a Veteran to obtain an effective date prior to the date of his reopened claim solely to misplaced records. The Court held that records generated in response to a Veteran's request are contemplated by the criteria of 38 C.F.R. § 3.156(c). Here, the RO's decision that granted the Veteran's claim was after the Federal Register and the regulatory changes and is not dispositive of this issue. Regardless, as indicated above, it is clear that the change in regulation was a restatement of policy that was already implemented. An award based all or in part on the records included in 38 C.F.R. § 3.156(c) is effective on the date entitlement arose or the date VA received the previously decided claim. Vigil, 22 Vet. App at 66. Furthermore, when an initial claim is denied because of lack of evidence of an in-service injury that is later granted based in part on subsequently acquired service records establishing the in-service injury, the claimant is entitled to a retroactive evaluation of the disability to assess a proper effective date which would be the date of the original claim or the date entitlement arose, whichever is later. Id. Here, the Veteran's original claim was received on December 23, 1996. As such, the Board finds that the proper effective date is December 23, 1996, the date the Veteran submitted his original claim. Thus, an earlier effective date for grant of service connection for the low back disability is assigned as a matter of law. ORDER An earlier effective date of December 23, 1996 for the grant of service connection for chronic low back pain status post multiple laminectomy is granted, subject to the regulation controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs