Citation Nr: 1817987 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 06-03 829A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an effective date earlier than January 23, 2002, for the award of service connection for residuals of injury, status-post total hip replacement. 2. Entitlement to an effective date earlier than January 23, 2002, for the award of service connection for pelvic asymmetry with a mechanical short left leg. 3. Entitlement to an effective date earlier than January 23, 2002, for the award of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35. 4. Entitlement to an effective date earlier than January 23, 2002, for the award of special monthly compensation based on loss of use of the right lower extremity. ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active service from January 1942 to November 1945. He died in May 2015, and the appellant is a surviving child who has been substituted in the appeal. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In that rating action, the RO granted service connection for residuals of injury, status post total hip replacement, with an assigned evaluation of 90 percent and an effective date of May 6, 2002; granted service connection for pelvic asymmetry with a mechanical short left leg, with an assigned evaluation of 10 percent and an effective date of November 16, 2004; granted eligibility for DEA benefits effective from November 16, 2004; and granted special monthly compensation based on loss of use of the right lower extremity effective from May 6, 2002. In July 2005, the RO granted an effective date of January 23, 2002, for all of these service-connected disabilities, evaluations, and entitlements; and the Veteran continued his appeal as to these issues. The Board remanded this case in January 2010, and in March 2010 the Veteran testified at a Board video-conference hearing. In an April 2010 decision, the Board denied entitlement to earlier effective dates for the issues noted above. The Veteran appealed the April 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in a June 2011 Memorandum Decision, the Court vacated the Board's decision denying the above-requested earlier effective date claims. The Court affirmed the Board's decision to deny the Veteran's clear and unmistakable error (CUE) claim for an unidentified VA decision. The earlier effective date issues were remanded to the Board for adjudication consistent with the Court's decision. In a September 2011 decision, the Board again denied entitlement to earlier effective dates for the issues at hand. The Veteran appealed the September 2011 Board decision to the Court, and the Court ultimately issued an en banc decision in July 2014 in which it vacated the Board's September 2011 decision denying the above-requested earlier effective date claims. The case was then returned to the Board for further action. In an April 2015 decision, the Board again denied entitlement to earlier effective dates for the issues at hand. The Veteran again appealed to the Court. As noted, he died in May 2015. The Court recognized the appellant as a substitute claimant in September 2015 to continue the appeal. In a March 2017 Memorandum Decision, the Court vacated the Board's April 2015 decision denying the above-requested earlier effective date claims. The case has again returned to the Board for further action. The issues of an effective date earlier than January 23, 2002, for the award of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35 and an effective date earlier than January 23, 2002, for the award of special monthly compensation based on loss of use of the right lower extremity are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). 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 Veteran filed a service connection claim for a right leg injury on February 26, 1974. 2. Service connection for residuals of a right leg injury was denied in an unappealed July 1974 rating decision; the Veteran was notified of the decision and of his appellate rights, but he did not appeal. 3. In December 1998, the Veteran received two additional service department records from the National Personnel Records Center (NPRC) and submitted them to VA in January 1999. 4. A July 2000 Board decision did not consider the additional service department records and declined to reopen the Veteran's service connection claim for a right leg/hip disorder. 5. The Veteran's most recent request to reopen his previously denied claim of service connection for a right leg/hip disorder was received on January 23, 2002; the Board reopened the claim in June 2004, and service connection for a right leg/hip disorder was granted in December 2004. 6. The Court's March 2017 memorandum decision determined that the December 2004 RO decision granting service connection for a right leg/hip disorder was based in part on the service department records released by the NPRC in December 1998. 7. The evidence shows that the Veteran has met all eligibility criteria for service connection for a right leg/hip disorder since February 26, 1974, the date he filed his initial service connection claim. 8. Resolving reasonable doubt in the Veteran's favor, the evidence shows that the Veteran has had pelvic asymmetry associated with service-connected right leg/hip disorder since February 26, 1974. CONCLUSIONS OF LAW 1. The criteria for assignment for a February 26, 1974 effective date for the grant of service connection for residuals of a right leg/hip injury have been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.400 (2005, 2014 and 2017). 2. The criteria for assignment for a February 26, 1974 effective date for the grant of service connection for pelvic asymmetry associated with residuals of a right leg/hip injury have been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.310, 3.400 (2005, 2015 and 2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes VA's duties to notify and assist pursuant to 38 U.S.C. §§ 5103(a) and 5103A (2012) and 38 C.F.R. § 3.159 (2017). Given the fully favorable action for the claims decided herein, discussion of how VA met its duties to notify and assist is not necessary at this time. The appellant seeks a February 26, 1974 effective date for the grant of service connection for right leg/hip disorder and secondary pelvic asymmetry. This is the date when the Veteran initially filed his service connection claim for a right leg injury. The Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened 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. Prior to March 24, 2015, a "claim" meant a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). An informal claim was any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. The communication could be from the claimant, his or her representative, a Member of Congress, or anyone acting as next friend of a claimant who is not sui juris. 38 C.F.R. § 3.155 (2014). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2017). If, however, 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 claim, notwithstanding 38 C.F.R. § 3.156(a). 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 38 C.F.R. § 3.156(c) 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; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). The current version of 38 C.F.R. § 3.156(c)(1) 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 (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2) (2017). In Cline v. Shinseki, 26 Vet. App. 18, 27 (2012), the Court found that the amended version of 38 C.F.R. § 3.156(c) has retroactive effects and does not apply to any claim filed prior to the October 6, 2006 effective date of the amendment. 71 Fed. Reg. 52,455 (September 6, 2006). Since the instant claim was received prior to October 6, 2006, the claim must be also considered under the pre-amended version of 38 C.F.R. § 3.156(c) without the limiting provisions under amended 38 C.F.R. § 3.156(c)(2). See Cline, 26 Vet. App. at 27 (providing that the October 6, 2006 limiting amendment of 38 C.F.R. § 3.156(c)(2) does not apply to cases received before October 6, 2006). For claims received prior to October 6, 2006, such as this one, the version of 38 C.F.R. § 3.156(c) (2005) as then in effect for newly received service department records provides, "[w]here 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 encompasses 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." An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) under either the former or amended version 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)(3) (2017); Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). A 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. 38 C.F.R. § 3.156(c)(4). In this case, the Veteran filed a service connection claim for a right leg injury in February 26, 1974. The RO denied service connection for residuals of the right leg/hip injury in an unappealed July 1974 rating decision. At the time of the decision, no service treatment records were available; in June 1974 VA was informed by the National Personnel Records Center (NPRC) that the records were lost in a fire at that facility. The Veteran thereafter filed another claim for the disorder at issue in October 1977. In connection with the claim, VA in January 1978 requested service department records from the NPRC. In February 1978, the NPRC responded by providing certain service department records. Specifically, the records included the following: An Organization or Detachment Commander's Report for August 1943 showing that the Veteran was returned to duty status after being on sick call the previous day; an Organization or Detachment Commander's Report for September 1943 showing that the Veteran was placed in a hospital status on September 3; an Organization or Detachment Commander's Report for September 1943 showing that the Veteran was returned to duty status from the hospital on September 10; an Organization or Detachment Commander's Report for November 1943 showing that the Veteran was returned to duty status after being on sick call earlier in the day; two indecipherable documents which contain the word "Remarks" on the title row; the title page for Morning Reports for a unit and dates which are indecipherable; the title page for Morning Reports for the 118th General Hospital for May 1942; the title page for Morning Reports for the Daily Report of Company M of the 126th Infantry for July to September 1941; the title page for Daily Sick Reports for the 118th General Hospital for indecipherable dates; the payroll roster for the 118th General Hospital for September 1943; and the payroll roster for the 118th General Hospital for October 1943. In a March 1978 rating decision, VA denied service connection for the right leg/hip disability at issue on the merits, with specific consideration of the service department records received in February 1978. The Veteran did not appeal the rating decision. Throughout the subsequent years, the Veteran submitted a number of claims seeking service connection for the disorder at issue. His claims were denied in April 1982, January 1989, March 1989, January 1990 and May 1990 decisions; the Board dismissed his appeal of the March 1989 rating action in January 1992. The Board notes that the only service department records received during this period were duplicates of those received in February 1978. In March 1996, the Veteran attempted to reopen his claim; the claim was denied in a June 1996 rating action. During the course of the Veteran's appeal of that rating action, the NPRC in December 1998 informed the Veteran that the agency had reviewed unit rosters to determine when he was no longer with certain units in service. The NPRC noted that its review of the records showed he was transferred to the Detachment of Patients, 155th Station Hospital in April 1943, and remained there until May 1943. The NPRC indicated he then probably was assigned to the 4th Replacement Depot (Australia) until August 1943, when he was assigned to the 118th General Hospital. The NPRC attached two service records which it acknowledged were of poor quality; however, the service records were sufficiently legible to show that the Veteran was transferred to the 155th Station Hospital on April 12, 1943. In July 2000, the Board resolved the Veteran's appeal by denying his application to reopen; however, the Board decision did not cite the service department records released in 1998 by the NPRC. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015) (stating that a new decision must be issued that is "directly responsive" to the new evidence). Thereafter, no further communication was received from the Veteran or any representative until January 23, 2002, when his former representative submitted a statement along with VA and private medical records. In a June 2004 decision, the Board reopened the claim and remanded the claim for further development. The basis for the Board's determination that new and material evidence had been received was a post-service medical opinion suggesting the right lower extremity disorder was post-traumatic in origin. In a December 2004 rating action, the RO granted service connection for residuals of hip injury status post replacement, with an assigned 90 percent evaluation effective May 6, 2002; service connection for pelvic asymmetry producing a mechanical short left leg, with an assigned 10 percent evaluation effective November 16, 2004; special monthly compensation based on loss of use of the right lower extremity, effective May 6, 2002; and Dependents' Educational Assistance benefits, effective November 16, 2004. The Veteran appealed the December 2004 rating decision as to each of the effective dates assigned. In a July 2005 rating action, the RO assigned each of the above benefits an effective date of January 23, 2002. The Veteran appealed and contended that the effective date should be February 26, 1974, the date of his initial service connection claim. The issue in dispute is whether the December 2004 RO decision granting service connection for residuals of injury, status-post total hip replacement, claimed as a right hip disorder, was based in part upon the two largely illegible service department records released by the NPRC in December 1998 and received by VA in January 1999. 38 C.F.R. § 3.156(c) (2017). In the controlling March 2017 Court memorandum decision, the Court determined that the Board's previous finding that the service department records received in 1998 did not include any legible and relevant information was clearly erroneous. It also determined the December 2004 RO decision granting the service connection claim for right leg/hip disorder was "based at least in part" on these newly received service records. Given the Court's March 2017 findings, the Board must conclude that the December 2004 rating decision granting service connection for residuals of injury, status-post total hip replacement claimed as right leg/ hip disorder was made at least in part due to the service department records released in December 1998. Id. As the service connection award was based in part on newly received relevant service department records, the date of service connection may be effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later. Id.; Mayhue, 24 Vet. App. at 279. The Board finds that a February 26, 1974 effective date for service connection for residuals of injury, status-post total hip replacement, claimed as a right leg/ hip disorder, is warranted as this is the date of the original claim. Id. The Board notes the July 1974 rating decision denied the claim due to absence of a current right leg disability. The Veteran's assertion of residual right lower extremity disability from combat injury in his initial February 26, 1974 service connection claim is competent and credible to show a residual disability in the absence of a contemporaneous medical diagnosis. 38 U.S.C. § 1154(b); Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Board observes that the question of whether symptoms such as right leg pain could constitute "disability" for purposes of the VA compensation laws and regulations in the absence of a specific diagnosis is one that the courts have not definitively answered. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). In Sanchez-Benitez, the Federal Circuit held that, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove existence of disability that has resulted from a disease or injury that occurred in service. Id. at 1361-1362. Thus, for example, a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury." Id. In contrast to Sanchez-Benitez, the factual background at issue indicates that the post-service right lower extremity pain is associated with or residual to the in-service combat injury. 38 U.S.C. § 1154(b). In the absence of definitive guidance on this issue, the Board will not deny an earlier effective date based on lack of specific diagnosis when the Veteran filed his initial claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the above-stated reasons, a February 26, 1974 effective date for service connection for residual of injury, right leg/hip disorder is granted. 38 C.F.R. § 3.156(c). Regarding pelvic asymmetry with a mechanical short left leg, this disability is secondary to service connection for residuals of injury, status-post total hip replacement, claimed as a right leg/hip disorder. 38 C.F.R. § 3.310; see December 2004 rating decision. The November 2004 VA examiner expressed uncertainty as to whether this disability preexisted the 1995 right hip replacement. In this regard, a December 1994 VA preoperative consultation reflected that the right lower extremity was approximately one inch longer than the left lower extremity. An older VA treatment record, apparently from November 1972, noted a lower extremity length discrepancy with the right lower extremity being shorter than the left lower extremity. Given these records, the Board resolves reasonable to doubt to find that pelvic asymmetry was shown from the February 26, 1974 date of claim for service connection for residual of injury, right leg/hip disorder. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. An effective date of February 26, 1974, is also warranted for service connection for pelvic asymmetry. Id. ORDER A February 26, 1974 effective date for service connection for residuals of injury, status-post total hip replacement, claimed as a right leg/hip disorder, is granted. A February 26, 1974 effective date for service connection for pelvic asymmetry secondary to residuals of injury, status-post total hip replacement, claimed as a right leg/hip disorder, is granted. REMAND The assigned effective date for service connection for right leg/hip disorder and pelvic asymmetry in the instant decision is many years prior to the previously assigned service connection date. The question of the appropriate disability ratings from February 26, 1974 to January 23, 2002 must be determined by the AOJ. That determination will, in turn, govern whether effective dates prior to January 23, 2002 for the award of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35 and special monthly compensation based on loss of use of the right lower extremity are warranted. For these reasons, the issue of entitlement to an earlier effective date for the award of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35 and special monthly compensation based on loss of use of the right lower extremity must be remanded to the AOJ for consideration in conjunction with assigning an initial disability ratings for right leg/hip disorder and pelvic asymmetry prior to January 23, 2002. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. In conjunction with the Board's determination above that an effective date of February 26, 1974, is warranted for the grant of service connection for right leg/hip disorder and associated pelvic asymmetry, re-evaluate the entirety of the record and determine whether awards of Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35 and special monthly compensation based on loss of use of the right lower extremity are warranted prior to January 23, 2002. The adjudication should consider all of the medical evidence of record as well as consideration of contemporaneous lay reports describing the Veteran's disabilities. 2. Then address any other outstanding issues or development necessary in light of the development ordered above. If the benefit sought on appeal are not granted in full, then issue a supplemental statement of the case (SSOC) and provide the appellant an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs