Citation Nr: 1805069 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-47 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an effective date earlier than December 8, 2015, for the grant of service connection for residuals of a left thumb laceration. 2. Entitlement to an effective date earlier than December 8, 2015, for the grant of service connection for residuals of a left thumb scar. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel INTRODUCTION The Veteran had active service from March 1943 to August 1943. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Jurisdiction of this case belongs to the RO in St. Petersburg, Florida. This appeal was previously before the Board in May 2017. At that time, the Board denied entitlement to an earlier effective date as to both issues. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Veterans Court). The Veterans Court vacated the Board's decision pursuant to a Joint Motion for Remand and remanded the claims to the Board to provide an adequate statement of reasons and bases for whether the Veteran was entitled to a reconsideration of the effective date of his award of service connection based on the receipt of service department records associated with the claims file after the decision was rendered by VA. See 38 U.S.C. § 501 (2012); 38 C.F.R. § 3.156(c). 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. The earliest communication from the Veteran, evidencing an intent to file a claim for service connection for a left thumb disability, was received on April 29, 1947. 2. In response to the claim filed on April 29, 1947, VA issued an August 1947 rating decision denying service connection for a left thumb disability; notice of this decision was provided August 6, 1947. 2. Additional medical records from the military station hospital where the Veteran's in-service injury was treated were associated with the claims file, and these documents bear stamps indicating that they were received variously by VA on August 8, 1947; August 11, 1947; and August 18, 1947; these records were received subsequent to the August 1947 rating decision. 3. Service connection for residuals of a left thumb laceration and for a left thumb scar was subsequently granted, in part, based on these additional service treatment records. CONCLUSIONS OF LAW 1. The criteria are met for an effective date of April 29, 1947, but no earlier, for the grant of service connection for residuals of a left thumb laceration. 38 U.S.C. §§ 501, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). 2. The criteria are met for an effective date of April 29, 1947, but no earlier, for the grant of service connection for a left thumb scar. 38 U.S.C. §§ 501, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection for residuals of a left thumb residual and for a left thumb scar, and assigned an effective date for those awards, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A Statement of the Case (SOC) issued in June 2016 provided notice on the "downstream issue" of entitlement to an earlier effective date and readjudicated the matter. 38 U.S.C. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, neither the Veteran nor his representative has alleged (to include before the Veterans Court) that notice in this claim was less than adequate. Regarding VA's duty to assist, all evidence relevant to the Veteran's claim has been secured. Importantly, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. Neither the Veteran nor his representative has identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. II. Analysis The Veteran seeks an earlier effective date for his awards of service connection for residuals of a left thumb laceration and for a scar on his left thumb. Generally, 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 a 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). However, where at any time after VA issues a decision on a claim, 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 merits of the claim. 38 U.S.C. § 501; 38 C.F.R. §§ 3.156(c), 3.400(q). An award based all or in part on the subsequently associated records is effective on date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 U.S.C. § 501; 38 C.F.R. §§ 3.156(c). Where a reasonable doubt arises as to any question of fact or law, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran suffered a laceration to his left thumb in May 1943 in the course of his service. He underwent a course of treatment from May to June 1943 at the station hospital at the military installation where he was stationed. According to the records from the station hospital, the wound was significant enough that the treatment providers were concerned of a possible injury to his tendon. However, subsequent treatment records from the station hospital document that the Veteran did not suffer a tendon injury, and the Veteran was returned to duty in June 1943. These station hospital records were reviewed and a determination was made in July 1943 that the injury was incurred in the line of duty. These clinical records and the determination that the injury was incurred in the line of duty were kept separately from the rest of the Veteran's service treatment records. The clinical records of the station hospital are records of a military hospital, and consequently meet the definition of service department records. See 38 C.F.R. § 3.156(c)(1)(i). The next question before the Board is whether these clinical records were associated with the file after the Veteran's claim was denied in August 1947. However, the precise date of this rating decision is not entirely clear from the record. The Veteran filed a claim for service connection for a left thumb disability on April 29, 1947 (see VA Adjudication Form 526); this is the earliest communication from the Veteran evidencing an intent to file a claim for service connection for a left thumb disability. VA obtained the Veteran's service treatment records in July 1947. These records contained a copy of the Veteran's enlistment physical examination report and some information regarding the Veteran's injury to his left thumb. This information included a "Transcript of Supplemental Card" that briefly described the Veteran's wound to the dorsum of the left thumb, the Veteran's treatment from May 1943 to June 1943 at the station hospital, and the Veteran's subsequent return to duty. These records do not contain all of the station hospital clinical records previously described. These records also do not contain a record of an examination conducted at the time of the Veteran's discharge or at any time subsequent to the Veteran's in-service injury. A rating work sheet dated August 1, 1947, lists "wound, incised, dorsum of left thumb, residuals of" among the Veteran's claimed disabilities. A subsequent, undated "Rating Sheet" indicates that the condition of "WOUND, INCISED, DOSUM OF LEFT THUMB, RESIDUALS OF" was "not found on last examination. Service records." This document appears to have been generated in conjunction with Compensation - Pension Disallowance Memorandum dated August 6, 1947, and a notification letter. The notification letter is also undated but appears to refer to one of the aforementioned documents saying "see attached sheet." The notification letter states that "the condition of wound, incised, dorsum of left thumb, was not found on examination at discharge." The Veteran did not appeal this decision. Thus, the Board finds that the Veteran's claim was denied on August 6, 1947, since that is the last date that seems to be associated with the adjudicative actions of the Veteran's original claim. The date that the clinical records from the station hospital were added to the Veteran's claims file is similarly not completely clear. These records appear to have been provided based on requests made by VA in July 1947 for records from two station hospitals. The responses to these requests bear stamps indicating they were received by VA on August 8, 1947, and August 11, 1947. The clinical records themselves bear a stamp from VA indicating that they were received on August 18, 1947. However, a precise determination as to which of these documents were added to the record on August 8, 1947, August 11, 1947, or August 18, 1947, is unnecessary. All three of these dates are subsequent to August 6, 1947, the date that seems to be most clearly associated with the original denial. Consequently, the Board finds that service treatment records regarding the Veteran's left thumb injury both existed prior to August 6, 1947, and were added to the record after the decision of the Board entered August 6, 1947. The Board notes that the evidence on this point is not unequivocal. On the same page of the clinical records that bears the stamp indicating that these documents were received on August 18, 1947, there is an additional stamp that says: "Adjudication Filed" and is dated August 19, 1947. However, it is not clear that this stamp was provided by VA or indicates that the adjudication and decision previously made in the August 6 worksheet was reassessed in light of the evidence contained in the clinical record. To the extent that this stamp casts any doubt on the date that the August 1947 rating decision was generated, that doubt should be resolved in favor the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, that means adhering to the finding that notice of the rating decision was provided on August 6, 1947, several days prior to the date that the clinical records were associated with the Veteran's claims file. However, in order to determine whether or not the Veteran is entitled to an earlier effective date because of the addition of these records the Board must determine whether these records were relevant to the claim. Relevant is not defined within section 3.156(c)(1). In December 2017 argument to the Board, the Veteran argues that records are relevant if they are not cumulative and pertinent to a matter at issue in the case. The Veteran also cites Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) for the proposition that "nothing in ... § 3.156(c)(1) strikes us as requiring, across the board, that relevant records must relate to the basis of a prior denial." In addition to these considerations raised by the Veteran, the Board also finds the language of 38 C.F.R. § 3.156(c)(3) provides guidance on the meaning of the term relevant. That subsection, which deals with effective dates, refers to awards that are made "based all or in part on records identified in paragraph (c)(1)." Thus, relevance can reasonably be found where an award is made based, at least in part, on the service department records added to a claims file. Finally, the Board also notes that subsection (c)(1) is part of section 3.156 which deals with new and material evidence. While the rest of the section deals with materiality, not relevance, the Board still finds the low bar for materiality instructive. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (stating that evidence is material when the new evidence combined with VA assistance and considered with the other evidence or record, raises a reasonable possibility of substantiating the claim). Here, the Board finds that under any of these possible formulations of relevance, the clinical records from the station hospital are relevant. After the Veteran filed his petition to reopen his claims of service connection, the Veteran was scheduled for a VA examination. The examiner reviewed the Veteran's claims file, including the station hospital records, and conducted a physical examination of the Veteran's hands. Based on the examination and the review of the medical records, the examiner opined that the Veteran had residuals of a left thumb laceration, a scar, and that it was at least as likely as not that these conditions were due to or a result of the in-service accidental incision to the dorsum of the Veteran's left thumb because these conditions were "essentially one and the same." As part of the rationalization for this opinion, the examiner cited "the treatment/hospitalization" throughout May 1943 and discharge in June of the same year. Based on this review of the record, the Board finds that these treatment records were a part of the examiner's analysis of the Veteran's condition that convinced her that the Veteran's residual condition and scar were "one and the same" as the Veteran's in-service laceration to his thumb. In turn, the Veteran received service connection based on the examiner's positive opinion. Thus, it would appear that because the clinical records formed part of the basis for the examiner's opinion, these clinical records are also part of the basis for the grant of service connection itself. They are therefore relevant within the meaning of section 3.156(c)(1). Finally, where an award is made based all or in part on service department records associated with the claims file after an initial denial, the effective date is the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). In this case, the Veteran's entitlement arose prior to the date that he submitted his previously decided claim to VA. The date that claim was submitted was April 29, 1947. Consequently, the Board finds that service connection for residuals of a left thumb laceration and service connection for a left thumb scar is established April 29, 1947. (CONTINUED ON NEXT PAGE) ORDER An effective date of April 29, 1947, for the grant of service connection for residuals of a laceration of the left thumb is granted, subject to the regulations governing payment of monetary awards. An effective date of April 29, 1947, for the grant of service connection for a left thumb scar is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs