Citation Nr: 21067371 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 20-28 016 DATE: November 4, 2021 ORDER Entitlement to an earlier effective date of August 1, 2009, but no sooner, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an earlier effective date of March 31, 1995, but no sooner, for the award of service connection for degenerative arthritis of the spine is granted. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for low back pain on March 31, 1995 and a claim for entitlement to service connection for PTSD on August 1, 2009. 2. A September 1995 rating decision denied the Veteran's claim for service connection for a low back pain and a January 2010 rating decision denied the Veteran's claim for service connection for PTSD. 3. Evidence received since the September 1995 and January 2010 rating decisions include relevant service treatment records which existed but were not of record at the time of the decisions. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of August 1, 2009, but no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. 2. The criteria for an earlier effective date of March 31, 1995, but no earlier, for the award of service connection for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to February 1995, and from February 2003 and May 2004. The matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the VA Regional Office (RO). In September 2021, the Veteran attended a videoconference hearing with the undersigned Veterans Law Judge (VLJ). 1. Entitlement to an earlier effective date of August 1, 2009, but no sooner, for the award of service connection for PTSD is granted. 2. Entitlement to an earlier effective date of March 31, 1995, but no sooner, for the award of service connection for degenerative arthritis of the spine is granted. The Veteran seeks an effective date earlier than January 11, 2016 for her service-connected PTSD and degenerative arthritis of the spine. Specifically, the Veteran provided an April 2017 notice of disagreement stating that her disabilities was denied in 2010 without proper explanation, and that she should not be penalized for lost or misplaced service treatment records, which were found by the RO after the issuance of the January 2010 rating decision. After reviewing the record in light of the applicable law and regulations, the Board will grant this claim to the extent indicated. 38 C.F.R. § 3.156(c). Generally, the effective date of an award of service connection shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § § 5110(a); 38 C.F.R. § § 3.400(b)(2). Where new and material evidence is received after a final disallowance, the effective date shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § § 3.400(q)(2). However, 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). On March 31, 1995, the Veteran filed a claim for service connection for low back pain and it was denied September 1995 rating decision. The Veteran was notified of this decision in a September 1995 letter and she did not appeal this decision within the year. On August 1, 2019, the Veteran submitted a VA 21-4138 Statement in Support of Claim form seeking a claim of entitlement for service connection to PTSD as well as a petition to reopen the claim for service connection to the lumbar spine condition. In a January 2010 rating decision, the RO denied the petition to reopen the claim for service connection for a low back condition based on the failure to submit new and material evidence. The January 2010 rating decision also denied the claim for service connection for PTSD based on a finding that the service treatment records do not show any complaint, treatment or diagnosis related to claimed condition, along with the lack of link between the available medical evidence and the claimed condition. The Veteran was notified of the decision and her appellate rights in a January 2010 letter; however, she did not submit a notice of disagreement within a year of the issuance of the decision. Therefore, that decision became final. 38 U.S.C. §§ 7105(c); 38 C.F.R. § § 20.1103. In December 2011, the Veteran requested the reopening of her claims for service connection for PTSD and a low back condition. A June 2012 rating decision determined that new and material had not been received to reopen the claims. The Veteran was notified of the decision and her appellate rights. As above, a notice of disagreement was not submitted, and that decision also became final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 20.1103. In January 2016, the Veteran submitted a VA 21-526EZ form, seeking to reopen claims of service connection for PTSD and a lumbar spine condition. In February 2016, the RO associated the Veteran's service treatment records with the claims file. In June 2016, the RO granted service connection for PTSD and lumbosacral strain effective January 11, 2016, the date of the Veteran's VA 21-526EZ submission. The Board notes that a December 2009 Memorandum made a Formal Finding of Unavailability regarding the Veteran's service treatment records and outlined the steps taken by the RO to obtain these records. The June 2016 rating decision confirmed that the service treatment records were received on February 29, 2016. During the June 2016 VA examinations, the examiner provided a positive nexus opinion and supported the opinion with the rationale that the Veteran's assailant was charged and court martialed for sexual assault with regards to her claimed PTSD. For the Veteran's lumbar spine, the VA examiner provided a positive nexus opinion and supported with a rationale that the Veteran injured her coccyx in 2001, and that this injury continued even after service. Given the VA examiner's etiology opinions, the RO granted service connection for both disabilities effective January 11, 2016. However, an award made based all or in part on relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, will be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(2). In this case, the VA examiner stated that his opinion was based not only on the examination but a review of the Veteran's service treatment records as well as her claims file. As the claims file included those newly associated service treatment records, it is reasonable to expect that they played a role in determining the initial manifestations of the Veteran's PTSD and the lumbar spine condition. Moreover, the additional service treatment records concerned the Veteran's active service, June 1980 to February 1995, and from February 2003 and May 2004 and were available at the time of the RO's November 2016 rating decision. Accordingly, they could have had an effect on that decision. 38 C.F.R. § 3.156(c)(2). The record shows that the RO was unable to locate the Veteran's service treatment records until February 2016. As such, there is clear indication that there were missing documents or information when adjudicating the claim for entitlement to service connection for PTSD and lumbar spine by the RO prior to the issuance of the June 2016 rating decision. As such, the Board finds the appropriate effective date of entitlement to service connection for PTSD is the original date of claim of August 1, 2009 and the appropriate effective date of entitlement to service connection for degenerative arthritis of the spine of March 31, 1995. To that extent, the claims are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, 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.