Citation Nr: 21023290 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-04 279 DATE: April 20, 2021 REMANDED Entitlement to an effective date earlier than August 15, 1995 for the grant of service connection for left knee strain/sprain is remanded. REASONS FOR REMAND The Veteran had active service from January 1969 to October 1969. This matter was previously denied by the Board in May 2018, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued a Memorandum Decision which set aside the May 2018 Board decision and remanded the matter to the Board for readjudication consistent with its decision. Entitlement to an earlier effective date than August 15, 1995 for the grant of service connection for left knee strain/sprain is remanded. VA is required to reconsider a veteran’s claim when relevant service department records are newly associated with the veteran’s claims file. 38 C.F.R. § 3.156(c)(1) (2019); Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014); Emerson v. McDonald, 28 Vet. App. 200, 207 (2016). If reconsideration results in an award of benefits based all or in part on the newly associated service department records, the effective date of the award is the date entitlement arose or the date VA received the previously denied claim, whichever is later. 38 C.F.R. § 3.156(c)(3); see Blubaugh, 773 F.3d at 1313-14; Emerson, 28 Vet. App. at 207. As the Federal Circuit explained, “[s]ubsection (c)(1) is a separate and distinct provision from subsection[](c)(3)” and “requires [] VA to reconsider only the merits of a veteran’s claim whenever it associates a relevant service department record with [the] claims file.” Blubaugh, 773 F.3d at 1314; see Emerson, 28 Vet. App. at 207. In contrast, “[o]nly if [] VA grants benefits resulting from reconsideration of the merits under §3.156(c)(1), must it consider an earlier effective date under subsection[] (c)(3).” Id. As the Court explained in Emerson, subsection (c)(1) provides a single limitation to when reconsideration is warranted—at any time after VA issues a decision on a claim. Emerson, 28 Vet. App. at 207. Accordingly, the Court has held that § 3.156(c)(1) requires VA to reconsider a previous denial of a veteran’s claim even where service connection was subsequently granted prior to receipt of relevant service department records. Id. at 207-11. The relevant question at issue in this matter is whether VA received or associated with the claims file official service department records relevant to the Veteran’s claim for service connection for a left knee condition that existed in March 1971 but had not been associated with the claims file at that time. In the March 2020 Memorandum Decision, the Court found that the Board did not adequately address whether service treatment records (STRs) submitted by the Veteran in December 2012 were relevant official service department records that had not been previously associated with the claims file. First, the Court stated that the Board mischaracterized the Veteran’s argument as one simply alleging missing STRs in March 1971, instead of appreciating his contention that the STRs he submitted in December 2012 were not associated with the claims file in March 1971. In this regard, the Court noted that the Board failed to address an April 1971 letter from the RO informing the Veteran that it was delaying taking action on his claim due to a pending request for “military records,” which reflects that the RO was not in possession of all of the Veteran’s service department records. Second, the Court found that the Board’s analysis improperly reviewed entitlement to an earlier effective date under §3.156(c)(3) before it determined if reconsideration was warranted under §3.156(c)(1). Subsection (c)(3) applies only when “VA has exhausted its duty under subsection (c)(1).” Blubaugh, 773 F.3d at 1314. Following a thorough review of the evidence of record, including with particular attention to the STRs contained within the claims file at the time of the March 1971 rating decision and the STRs submitted by the Veteran in December 2012, the Board finds that while some of the STRs submitted by the Veteran in December 2012 are duplicative in nature, there is at least one document submitted in December 2012 that is relevant, existed in March 1971, and apparently had not been associated with the claims file at that time. Specifically, the Board notes that the STRs submitted by the Veteran in December 2012 contain a Clinical Record Cover Sheet from Madigan General Hospital signed by an attending physician, Robert G. Bump, on September 19, 1969. This record documents the Veteran’s August 21, 1969 hospital admission for a tear of the left medial meniscus, which required orthopaedic surgery and a 29-day recovery period at the hospital, after which he was discharged to restricted duty. Additionally, the attending physician noted that the Veteran’s condition was in the line of duty, existed prior to service, and was aggravated by service (“LD: YES, EPTS, aggravated by service”). Given the above, the Board finds that the provisions of 38 C.F.R. § 3.156(c) apply to the facts of this case and that the Veteran’s submission of STRs in December 2012, which included relevant service department records, requires the Board to remand this matter for the agency of original jurisdiction (AOJ) to reconsider the Veteran’s claim. The matter is REMANDED for the following action: Reconsider the Veteran’s claim in light of 38 U.S.C. § 3.156(c) to determine whether an earlier effective date than August 15, 1995 is warranted for the grant of service connection for left knee strain/sprain. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad 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.