Citation Nr: 20021899 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-40 684 DATE: March 27, 2020 ORDER An effective date of April 11, 2002, but not earlier, for the grant of service connection for a low back disability is granted. FINDING OF FACT The Veteran originally filed a claim for service connection for a low back disability in April 2002. A relevant service department record that had existed but was not associated with the claims file at the time of the July 2002 rating decision denying service connection for a low back disability was later associated with the claims file in March 2018. CONCLUSION OF LAW The criteria for entitlement to an effective date of April 11, 2002, for the grant of service connection for a low back disability have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1959 to October 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In February 2020, the Veteran testified before the undersigned via videoconference at a hearing. A transcript of his testimony has been associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Entitlement to an earlier effective date of April 11, 2002, for entitlement to service connection for a low back disability Historically, the Veteran filed his original claim for entitlement to service connection for a low back disability in April 2002. In a July 2002 rating decision, the RO denied his claim. As part of its rationale for denying his claim, the RO stated that although service treatment records show treatment for low back pain in May 1960 and August 1963, his separation examination in September 1963 found his spine to be normal. The Veteran did not appeal this decision, and no new evidence was added to the claims file within one year. Subsequently, the Veteran filed a new claim for service connection in February 2018, which was granted in a May 2018 rating decision that assigned an effective date of February 16, 2018. Thereafter, the Veteran filed a June 2018 Notice of Disagreement, disagreeing with the effective date assigned by the RO for his service-connected low back disability based on clear and unmistakable error. At his February 2020 Board hearing, the Veteran and his representative argued that the RO committed clear and unmistakable error in the July 2002 rating decision that denied his original claim by stating that his separation examination results were normal and by ignoring service treatment records reflecting treatment for chronic low back pain. Without having to address the Veteran’s arguments, however, the Board notes that at the time the July 2002 rating decision was issued, the only official service records in the claims file were his service treatment records. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant 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. 38 C.F.R. § 3.156(c). Such relevant service department records include, but are not limited to, service records that are related to the claimed in-service event, injury, or disease, regardless of whether they mention a veteran by name, as well as additional service records forwarded by the Department of Defense or service department to VA at any time after VA’s original request for service records. Id. at 3.156(c)(1)(i)-(ii). Therefore, new and material evidence is not needed to reopen a previously denied claim when such relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. In this case, relevant service department records were received after the July 2002 rating decision denying service connection. These military personnel records, which were requested by the RO and received in March 2018, were not already of record at the time of the prior decision. The personnel records include an August 1963 physical profile that prohibited the Veteran from heavy lifting, prolonged standing, and bending due to a lumbar defect, as well as performance reviews describing his work as a special vehicle repairman. (At his April 2018 VA examination, the Veteran stated that his work as a special vehicle repairman required him to lift heavy equipment and crawl around, which contributed to his disability.) As these records directly relate to the Veteran’s low back disability, and because this evidence was cited by the RO in its May 2018 rating decision that granted service connection, the Board finds that these service personnel records constitute relevant service department records. As such, 38 C.F.R. § 3.156(c) applies, and the RO should have reconsidered the April 2002 claim for service connection on its merits. Relevantly, 38 C.F.R. § 3.156(c)(3) provides that an award based entirely on or in part of new, relevant service department records is “effective on the date entitlement arose, or the date VA received the previously decided claim, whichever is later.” Here, the Veteran’s post-service treatment records reflect treatment for a chronic low back disability starting in February 1988. Thus, the award for service connection that was based partially on the military personnel records received after the previously denied April 2002 claim is effective on the date VA received the previously denied claim (i.e., April 11, 2002). This represents a full grant of the benefit sought on appeal for this issue. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.