Citation Nr: 1416050 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 09-00 216A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date prior to October 5, 2006, for the grant of service connection and compensation for degenerative disc disease at L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from December 1969 until January 1972 and received the Purple Heart with an Oak Leaf Cluster among other decorations for this service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2007 and May 2008 rating decisions from the Department of Veterans Affairs (VA), Regional Office (RO), of Indianapolis, Indiana. Jurisdiction of the file was subsequently transferred to the Nashville, Tennessee RO. The Board previously considered this appeal in February 2012 and remanded the case in order to afford the Veteran a hearing. The Veteran testified at a hearing held at the RO in November 2012 before the undersigned Veterans Law Judge. The Virtual VA and VBMS files have been reviewed. FINDINGS OF FACT 1. The Veteran filed a claim for service connection in December 1974. The April 1975 rating decision denying service connection for the lumbar spine is final. 2. A prior January 1982 Board decision denying service connection for the lumbar spine is final. The prior June 1980 and April 1981 rating decisions are subsumed by the Board decision. 3. Rating decisions in April 1986 and May 2001 denying service connection for the lumbar spine are final. 4. Daily Staff Journal notes that were declassified in 1987 were associated with the claims file in October 2006. 5. The March 2007 VA examiner considered the declassified records and concluded that it was at least as likely as not that the 1971 helicopter crash may have caused a possible herniated disc. 6. The May 2007 rating decision that granted service connection for degenerative disk disease at L5-S1 based the grant, in part, on the March 2007 VA examination. 7. The first diagnosis of a herniated disc appears in an August 28, 1980 private hospital record. CONCLUSION OF LAW The criteria for an effective date of August 28, 1980, for the grant of service connection for degenerative disc disease at L5-S1 have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion as to VCAA is not required at this time. The Veteran seeks an effective date prior to October 5, 2006, for the grant of service connection for degenerative disc disease of L5-S1 and argues that the RO did not apply 38 C.F.R. § 3.156(c) to declassified service records. Generally, once decisions are final, they are no longer the appropriate point from which to determine the effective date of an award and the effective date of any subsequent claim will be based upon the date of the claim to reopen. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); 38 C.F.R. § 3.400. If after VA issues a decision on a claim, relevant official service department records, including declassified records, that existed and were not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). An award based in all, or in part, upon such service department records will be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date that may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). In October 2006, the Veteran submitted Daily Staff Journal notes that were declassified in 1987. While these records were declassified prior to the May 2001 rating decision, these records were not previously of record or considered by the RO at that time. The May 2007 rating decision that granted service connection for degenerative disc disease was based, in part, on a March 2007 VA examination which found it was at least as likely as not that the 1971 helicopter crash may have caused a possible herniated disc. This VA examination was based, in part, upon review of the declassified documents. As such, 38 C.F.R. § 3.156(c) applies. Accordingly, the effective date will be the later of the date entitlement arose or the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(3). Although VA received the initial claim on December 12, 1974, the date entitlement arose was August 28, 1980, the date that private hospital records confirmed the presence of a herniated disc at L5-S1. There are no records prior to this date which reflect a diagnosis related to the lumbar spine. As the later of the two dates is the private hospital record, an earlier effective date of August 28, 1980 is warranted. ORDER An effective date of August 28, 1980, for the grant of service connection and compensation for degenerative disc disease at L5-S1 is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs