Citation Nr: 20075726 Decision Date: 11/27/20 Archive Date: 11/27/20 DOCKET NO. 05-25 218 DATE: November 27, 2020 ORDER Entitlement to an effective date prior to July 17, 2001, for the grant of service connection for degenerative joint disease, left hip, residuals of deformity of the medial left superior pubic ramus is denied. FINDINGS OF FACT 1. An April 1991 Board decision denied service connection for residuals of a hip injury. The decision became final the date of the decision. 2. The Regional Office received a service connection claim for a left hip condition on July 17, 2001. 3. A March 2016 rating decision granted the issue of entitlement to service connection for degenerative disc disease, left hip, residuals of deformity of the medial left superior pubic ramus and assigned an effective date of September 8, 2003. In November 2017, an effective date of July 17, 2001, was assigned. 4. The October 26, 1988, treatment record reporting left groin pain is not relevant to the grant of service connection for degenerative joint disease of the left hip. 5. The October 26, 1988, treatment record reporting left groin pain was not associated with the claims file after the 1991 Board decision. 6. The decision to reopen the Veteran’s claim for service connection of degenerative disc disease, left hip was not based all, or in part, on service medical records that were associated with the claims file after the 1991 Board decision. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 17, 2001, for the grant of service connection for service connection for degenerative joint disease, left hip, residuals of deformity of the medial left superior pubic ramus have not been met. 38 U.S.C. §§ 5110 (a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1987 to April 1989. The Veteran was granted service connection for degenerative joint disease, left hip, residuals of deformity of the medial left superior pubic ramus (degenerative joint disease, left hip) in a March 2016 rating decision, effective September 8, 2003. The initial rating assigned was based upon limitation of flexion. The Veteran filed an appeal of the effective date of the award of service connection for degenerative joint disease, left hip in May 2016 arguing that the award of service connection should go back to the date of discharge, April 3, 1989. In November 2017, the Agency of Original Jurisdiction (AOJ) granted an earlier effective date of July 17, 2001, for the grant of service connection for degenerative joint disease, left hip. In June 2018, the Board denied entitlement to an effective date prior to July 17, 2001, for the grant of service connection for degenerative joint disease of the left hip. The Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued a memorandum decision vacating the portion of the decision that denied entitlement to an effective date prior to July 17, 2001, for the grant of service connection for degenerative joint disease of the left hip, and remanded the issue to the Board for further consideration. In August 2020, the Veteran's claim was remanded by the Board for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In an August 2020 rating decision, the AOJ granted service connection for left groin strain, effective July 17, 2001. 1. Entitlement to an effective date prior to July 17, 2001, for the grant of service connection for degenerative joint disease of the left hip As noted above, the Veteran was granted service connection for degenerative disc disease, left hip in a March 2016 rating decision, effective September 8, 2003. In May 2016, the Veteran filed a Notice of Disagreement stating that the effective date should be earlier “because a claim for the hip condition was made earlier and the examiner relied on service records of an old fracture to support his claim.” In a July 2017 statement, the Veteran’s representative argued that “the effective date should be April 3, 1989. [The Veteran] filed a claim for a left hip disability on April 27, 1989. The original decision denying service connection stated that there was no evidence of left groin pain, while in service. However, when the matter was re-opened by the Board and ultimately granted, the medical examiner relied on an October 1988 service medical record which stated that the Veteran had suffered left groin pain. Because the medical examiner relied on service medical records which were not considered before, VA regulations require the EED to go back to the date of the original claim which was April 27, 1989. Since the Veteran filed within a year of discharge, the effective date would go back to the date of discharge which was April 3, 1989.” Subsequently, the AOJ granted an earlier effective date of July 17, 2001, for the grant of service connection for degenerative disc disease, left hip. A December 2017 SOC was issued denying entitlement to an effective date prior to July 17, 2001, and this issue was appealed to the Board. In March 2018, the Veteran’s representative submitted argument in support of the Veteran’s claims on appeal. The Veteran’s representative again argued that an effective date of April 3, 1989, was warranted. The representative stated that “the original decision denying a left hip disability stated that there was no evidence of groin pain, while in service. However, when the matter was reopened by the Board and ultimately granted, the medical examiner relied on an October 1988 service medical record which stated that the Veteran had suffered left groin pain.” The representative argued that “because the examiner relied on service medical records which were not considered before, VA regulations require that the effective date to go back to the date of original claim which was April 27, 1989.” And because the Veteran filed within a year of discharge from service, the effective date would go back to the date of discharge, April 3, 1989. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, newly discovered service treatment records can serve as a basis for providing an earlier effective date under 38 C.F.R. § 3.156 (c). 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. 38 C.F.R. § 3.156 (c)(1). An award made based on 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)(3). 38 C.F.R. § 3.156 (c) was amended effective on October 6, 2006. See 71 Fed. Reg. 52, 455 (Sept. 6, 2006). In this case, the Veteran timely appealed the assignment of the effective date assigned in the May 2016 rating decision that was in response to a claim filed on July 17, 2001. Consequently, the current version of 38 C.F.R. § 3.156 (c) and the one effective January 22, 1991, are applicable to the claim at issue. 38 C.F.R. § 3.156 (c) (2001-2020). The Board notes, however, that readjudication under 38 C.F.R. § 3.156 (c)(1) is only warranted if VA receives or associates with the claims file official service department records that are 1) relevant; and 2) had not been associated with the claims file when VA first decided the claim. Here, the Board finds that the October 26, 1988, treatment record is not relevant to the Veteran’s grant of service connection for degenerative joint disease, left hip. The Board also finds that all currently associated service medical records, including the October 26, 1988, treatment record, were previously of record at the time of the April 1991 Board decision when VA first decided the claim. First, the Board finds that the October 26, 1988, treatment record is not relevant to the Veteran’s grant of service connection for degenerative joint disease, left hip. The October 26, 1988, treatment record notes the Veteran’s reports of left groin pain upon straight leg raise at 60 degrees. The record does not mention the Veteran’s left hip, arthritis, or degenerative joint disease. As such, the Board finds that the October 26, 1988, treatment record is not relevant to the grant of service connection for degenerative joint disease, left hip. Further, even if the October 26, 1988, treatment (or any other service department record) were deemed relevant, the record does not establish that service department records that were not previously of record were associated with the claims file, and that such records were not relied upon at all, either based all or in part, in determining to reopen the Veteran’s claim for a hip disability. The evidence of record does not indicate that service medical records or service records indicating a hip injury or hip disability have been associated with the claims file since the September 1989 rating decision became final, after it was appealed to the Board in April 1991. The April 1991 Board decision specifically noted that the Veteran’s service medical records were reviewed. There is no evidence indicating that the October 26, 1988, treatment record was not associated with the record at that time, or that it has been associated with the record since that decision. While the date stamp on the October 26, 1988, treatment record is unclear, other records in the same folder indicate that they were received by the New Orleans RO on June 23, 1989, prior to the September 1989 and the April 1991 Board decision. There is no letter or other evidence indicating that previously missing service medical records had been associated with the claim file after the April 1991 Board decision. While the October 26, 1988, treatment record is not specifically mentioned by the September 1989 or April 1991 Board decision, each piece of evidence considered by the AOJ is not specifically mentioned by a rating or Board decision. The Board notes that there are many other service medical records that are not specifically mentioned by the rating decision, but there is no indication that these documents were associated with the claims file after the initial adjudication of the claim. The Board finds that the evidence of record indicates that the October 26, 1988, treatment record was associated with the claims file at the time of the April 1991 Board decision. There is no evidence that this evidence was associated with the claims file after these decisions were made. Accordingly, the evidence would not warrant reconsideration pursuant to 38 C.F.R. § 3.156 (c). The new and material evidence that was used to re-open the Veteran’s claim was the December 2013 medical evaluation indicating that the Veteran has a groin strain that occurred during his in-service fall in 1988, and the January 2014 medical opinion that the Veteran’s degenerative arthritis of the left hip (and all of his hip disabilities) are at least as likely as not related to the fall that he sustained while on active duty. There is no indication that these medical opinions either were service department records that had not been associated with the claims file or were based on (even in part) service department records that had not been associated with the claims file. While these medical opinions may have considered evidence that was previously of record that may have not previously been considered, this would not prompt reconsideration under 38 C.F.R.§ 3.156 (c). As service department records that have not been associated with the claims file that have been relied upon, even in part, to reopen the Veteran’s claim, the Board finds that an earlier effective date is not warranted under any version of 38 C.F.R. § 3.156 (c) from 2001 to 2020. The Board also finds that the evidence does not support a finding that the Veteran had a claim for a hip disability that was pending prior to July 17, 2001. The Veteran’s previous claim for a hip disability was denied by the April 29, 1991, Board decision and became final on that date. The evidence of record does not indicate that the Veteran filed a claim for a hip disability between that date and the Veteran’s current effective date of July 17, 2001. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a). Prior to March 24, 2015, informal claims were recognized. Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2014). An informal claim must identify the benefit sought. Here, the evidence does not indicate that the Veteran filed either a formal or informal claim for a left hip disability prior to July 17, 2001, after the 1991 Board decision. 38 C.F.R. § 20.1100 (a). (Continued on the next page)   In conclusion, the Board finds that the Veteran’s claim to reopen entitlement to service connection for a hip disability was received by the RO on July 17, 2001. There is no evidence of record to show that there was any communication from the Veteran indicating the intent to apply for service connection for a hip disability, constituting a pending claim, between the final Board decision and prior to that date. Furthermore, the evidence does not indicate that service department records, particularly service medical records were received by the AOJ, after the 1991 Board decision. As there is no indication that the Veteran had a pending claim for a hip disability prior to July 17, 2001, or that the decision to reopen the Veteran’s claim was based, even in part, on service department records that had been associated with the claims file after the 1991 Board decision, the Board finds that the assignment of an effective date prior to July 17, 2001, for the grant of service connection for degenerative disc disease, left hip is not warranted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.