Citation Nr: 21027416 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 18-29 703 DATE: May 5, 2021 ORDER Entitlement to an effective date of August 31, 1988 for service connection for lumbosacral strain and spondylolisthesis of L5 on S1 is granted. FINDING OF FACT In a March 1989 rating decision VA denied service connection for lumbosacral strain. In May 2016, relevant official service department records were received which existed at the time of the March 1989 rating decision but had not been associated with the file when VA first decided the claim. These records served, at least in part, as the basis for the award of service connection for a lumbosacral strain and spondylolisthesis of L5 on S1. CONCLUSION OF LAW The criteria for entitlement to an effective date of August 31, 1988 for service connection for a lumbosacral strain and spondylolisthesis of L5 on S1 have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400(b)(2)(i). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1986 to August 1986 and from April 1987 to August 1988. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated May 2016 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. In June 2019, the Board denied the issue on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court wrote a Memorandum Decision, setting aside the June 2019 Board decision that denied entitlement to an effective date prior to May 11, 2015 for a lumbosacral strain and remanding the issue for the Board to consider the application of 38 C.F.R. § 3.156(c). The issue has now been returned to the Board for adjudication. In February 2021 the Veteran notified VA that he revoked the power of attorney of his representative and wished to proceed without representation. The Board will proceed to adjudicate the appeal. Entitlement to an effective date prior to May 11, 2015 for service connection for a lumbosacral strain and spondylolisthesis of L5 on S1 Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a direct service connection claim is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). In this case, the Veteran separated from service on August 30, 1988 and submitted his original claim for compensation for spondylolisthesis/lower back pain in September 1988. Thus, his claim was received within one year of his separation from service. The Veteran's claim was initially denied in a March 1989 rating decision, which was treated as final by VA. However, Medical Evaluation Board Proceedings (MEB) and Physical Evaluation Board Proceedings (PEB) relevant to the Veteran's back disability claim were received in May 2016, 27 years after the March 1989 rating decision denying the Veteran's claim for service connection. The March 1988 MEB received in May 2016 showed chronic back pain that had its onset in 1987. The April 1988 MEB, also received in May 2016, noted that the Veteran's chronic back pain existed prior to service and was permanently aggravated by service. A July 1988 PEB received in May 2016 also noted the Veteran's chronic back pain and the limitations that it caused him. 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." As the aforementioned service records meet the criteria for 38 C.F.R. §§ 3.156(c), the Board will reconsider the Veteran's initial claim from September 1988. In this case, the Board finds that entitlement arose prior to the date of claim because both the MEB and PEB records show that the Veteran's back disability preexisted service and was aggravated by service. (Continued on the next page) Thus, because entitlement arose prior to the date the claim was filed, the Board will grant the Veteran's claim from the date following his separation from active service as it is the later date. Therefore, as the Veteran separated from service on August 30, 1988, entitlement to an effective date of August 31, 1988 for service connection for a lumbosacral strain and spondylolisthesis of L5 on S1 is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.