Citation Nr: 20053070 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 17-45 167 DATE: August 11, 2020 ORDER Entitlement to an effective date of May 3, 1994 for the award of service connection for right ankle disability is granted. Entitlement to an effective date of May 3, 1994 for the award of service connection for left ankle disability is granted. FINDINGS OF FACT 1. The Veteran filed claims seeking entitlement to service connection for right and left ankle disabilities on May 3, 1994; the claims were denied in November 1994, and the Veteran did not appeal the rating action. 2. The Veteran filed an application to reopen his claims seeking entitlement to service connection for right and left ankle disabilities in December 2015, which were granted in a May 2016 rating decision on the basis of service treatment records which had not been associated with the claims file at the time of the November 1994 rating decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 3, 1994 for the award of service connection for right ankle disability have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.156, 3.400 (2019). 2. The criteria for an effective date of May 3, 1994 for the award of service connection for left ankle disability have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.156, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1974 to April 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board denied earlier effectives dates for the award of service connection for right and left ankle disabilities. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Partial Remand (JMPR) in November 2019, vacating the portion of the May 2019 Board decision that denied entitlement to earlier effective dates for the award of service connection for right and left ankle disabilities and remanding the matters for action consistent with the terms of the JMPR. Earlier Effective Dates The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. § 3.400(b)(2) (2019). For reopened claims, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (2019). Where the new and material evidence that reopened the claim consists of service department records (since it is considered these records were lost or misplaced), the effective date is to agree with the evaluation or date of receipt of the claim on which the prior evaluation was made, whichever is later, subject to rules on original claims filed within one year after separation from service. 38 C.F.R. § 3.400(q)(2) (2019). 38 C.F.R. § 3.156(c) and § 3.400(q)(2) establish an exception to the general effective date rule in § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later. The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefit and those records lead VA to award a benefit that was not granted in the previous decision. Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, whichever is later, even though the decision on that claim may be final under § 3.104. 38 C.F.R. § 3.156 (c) provides that 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. 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)(i)(3). The claims of entitlement to an effective date earlier than May 4, 2015 for the award of service connection for right ankle disability and to an effective date earlier than May 4, 2015 for the award of service connection for left ankle disability The Veteran seeks effective dates earlier than May 4, 2015 for the award of service connection for right and left ankle disabilities. Specifically, he claims that he was originally denied service connection for right and left ankle disabilities in November 1994 because his rating decision was based on missing service treatment records, which were later associated with his claims file and relied upon as evidence to grant service connection in May 2016. Upon review of the relevant evidence of record, the Board finds that an effective date of May 3, 1994 for the award of service connection for right and left ankle disabilities is warranted. The record reflects that the Veteran’s service treatment records (STRs) were not available at the time of the November 1994 rating decision that originally denied service connection for right and left ankle disabilities. They were not added to the Veteran’s claims file until January 2016. These STRs show a diagnosis of and treatment for bilateral Achilles’ tendonitis, and the Veteran’s 1994 separation examination reveals reports of foot trouble. Post-service VA treatment records from 2004 to the present reflect reports of and treatment for bilateral Achilles’ tendon pain. The April 2016 VA examiner diagnosed the Veteran with bilateral Achilles’s tendon rupture and opined that it is at least as likely as not that the Veteran’s bilateral ankle disabilities were incurred in or caused by an in-service injury, event, or illness. In support of her opinion, the examiner specifically relied on the Veteran’s STRs, stating that they show that the Veteran’s bilateral ankle disabilities began during service, where he was seen several times for these disabilities. Here, the November 1994 rating decision denied service connection for right and left ankle disabilities due to the Veteran’s failure to report for his scheduled VA examination, as well as unavailable STRs. In May 2016, the RO, now in receipt of the Veteran’s STRs and a nexus opinion linking the Veteran’s bilateral ankle disabilities to service, granted service connection with an effective date of May 4, 2015, the date VA received the Veteran’s claim to reopen his claim for service connection for bilateral ankle disabilities. Under 38 C.F.R. § 3.156(c), where new and material evidence consists of, in part, additional service medical records received before or after a decision has become final, the former decision is to be reconsidered by the adjudicating agency of original jurisdiction. While the Veteran's STRs were not available at the time of the November 1994 rating decision, but were since located and relied upon to substantiate the grant of service connection in the May 2016 rating decision, under this exception, the effective date of the award is the date entitlement arose or the date VA received the previously denied claim, specifically, May 3, 1994. In conclusion, as the Board finds that an effective date of May 3, 1994 for the award of service connection for right ankle disability and an effective date of May 3, 1994 for the award of service connection for left ankle disability are warranted, the claims are granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.