Citation Nr: 21041835 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-24 781 DATE: July 10, 2021 ORDER Entitlement to an earlier effective date of April 1, 2011, for the award of a 50 percent rating for breast reduction surgery is granted. FINDING OF FACT 1. Service connection for breast reduction surgery was granted and assigned a noncompensable evaluation effective April 1, 2011. 2. Relevant service department records were received in March 2015. CONCLUSION OF LAW The criteria for an earlier effective date of April 1, 2011 for the award of a 50 percent disability rating for breast reduction surgery are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1988 to March 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision by the St. Paul, Minnesota Regional Office (RO) of the United States Department of Veterans Affairs (VA). These issues have been before the Board previously, most recently in October 2019. In its October 2019 decision, the Board denied the Veteran's claim for an earlier effective date for the award of the 50 percent disability rating for breast reduction surgery. The Veteran appealed the Board's decision to the Court of Appeals for Veteran's Claims (Court). In February 2021, the parties agreed to a Joint Motion for Remand (JMR). The Court vacated the October 2019 decision and remanded the matter to the Board for action consistent with the JMR. The parties agreed that the Board failed to provide an adequate statement of reasons or bases for declining to apply 38 C.F.R. § 3.156(c). Under this regulation, "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). "An award made based on all or in part" on the late arriving service department records "is effective on the date entitlement arose or the dated VA received the previously decided claim, whichever is later[.]" 38 C.F.R. § 3.156(c). VA awarded service connection for breast reduction surgery and assigned noncompensable evaluation effective April 1, 2011, in an August 2013 rating decision. In March 2015, service treatment records (STRs) were associated with the Veteran's claims file which included two post-breast reduction surgery operative reports which documented the amount of breast tissue removed during surgery. In May 2017, the Veteran filed an increased rating claim for the issue on appeal and an August 2017 rating decision based in part on the STRs received in March 2015, increased the Veteran's disability evaluation for residuals of breast reduction surgery to 50 percent effective May 1, 2017. In her October 2017 Notice of Disagreement, the Veteran requested an earlier effective date than May 1, 2017 for the 50 percent rating stating that the claim should be reconsidered under 38 C.F.R. § 3.156(c). The Board agrees with the Veteran and finds that 38 C.F.R. § 3.156(c) does not apply only to claims for entitlement to service connection. 38 C.F.R. § 3.156(c)(3), Service Department Records, states "an award made based all or in part on the records identified by (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." It does not differentiate between increased rating and service connection claims. Similarly, 38 C.F.R. § 3.156(b) states that "New and material evidence received prior to the expiration of the appeal period . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period," and applies to all claims (service connection and increased rating) which come before the Board. In contrast, 38 C.F.R. § 3.156(a) specifies that it applies to "claims to reopen," which effectively limits it to service-connection claims or previously denied entitlement claims. The regulation reflects that its authors knew how to distinguish between types of claims, and did so when intended. As that plain language is not included in 38 C.F.R. § 3.156(c), that provision is not intended to be limited in its application, and so it must be applied here. After a careful review of the evidence of records, the Board finds the applicable effective date for the award of 50 percent disability evaluation for residuals of breast reduction surgery is April 1, 2011, the effective date of the grant of entitlement to service connection for residuals breast reduction surgery. The Veteran's breast reduction surgery occurred in service, and the STRs received in March 2015 clearly establish the Veteran met the criteria for a 50 percent disability evaluation as of April 1, 2011, the date following the Veteran's release from active duty. It is this claim which must be reconsidered, not reopened, in light of receipt of new but previously available relevant service department records. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.