Citation Nr: 22028437 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 17-60 208 DATE: May 13, 2022 ORDER Entitlement to an effective date earlier than February 18, 2014, for the award of service connection for endometriosis, chronic pelvic pain (hereinafter "endometriosis"), is denied. Entitlement to an effective date earlier than February 18, 2014, for the award of service connection for an abdominal hysterectomy with pelvic adhesive disease due to recurrent uterine fibroids (hereinafter "a hysterectomy"), is denied. FINDING OF FACT There was no pending claim prior to February 18, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 18, 2014, for the award of service connection for endometriosis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than February 18, 2014, for the award of service connection for hysterectomy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from November 1980 to November 2000. Effective Date Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). 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. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c). In 2001, VA received a claim for service connection for endometriosis. The claim was denied in a July 2002 rating decision due to lack of a current disability. The Veteran did not appeal the decision. In January 2013, the Veteran reported an intent to file. On January 31, 2013, the agency of original jurisdiction (AOJ) issued a letter in which it informed the Veteran that if the Veteran returned a completed VA form 21-526 within one year from the date of the letter and the record showed the Veteran was entitled to payments, the beginning date of payments would be based on the date of receipt of the informal claim. The Veteran was also informed that after one year, the beginning date of payments would be based on the date the application was received. In February 2013, the Veteran sent an e-mail to VA reporting that she filed a fully developed claim (FDC) in January 2013 via VA form 21-4138 and that she was asked to fill out a VA form 21-526 when the correct form was a VA 21-526EZ for FDC. In the same email, she asked that a claim be established. In response, the AOJ informed the Veteran that they did not have an "end product open regarding a claim" and that the Veteran should submit a VA form 21-526EZ at her convenience. In February 2014, the AOJ received a completed VA form 21-526EZ for issues including endometriosis and hysterectomy. In an October 2014 rating decision, VA granted service connection for endometriosis and hysterectomy, effective February 18, 2014, the date of receipt of the VA form 21-526 claim. The Board has reviewed the evidence dated prior to February 18, 2014, but finds no evidence that could be interpreted as a pending claim or that could have prevented the July 2002 rating decision from becoming final. No evidence of record entered VA's possession (either actual or constructive) within one year of the July 2002 rating decision that could render it not final. Additionally, the record is absent any statement or record that could be interpreted as a pending claim between the July 2002 rating decision and February 18, 2014. Notably, the Veteran abandoned the January 2013 date by failing to submit the requested information within the year, as instructed by VA in the January 2013 letter. In making this determination, the Board finds probative that the Veteran was informed in February 2013 that there was no claim of record and that she must submit a VA form 21-526EZ. Although the Veteran was not reminded that the claim must be submitted by January 31, 2013, that information had been previously provided and the AOJ did not provide any information that could result in the belief that the Veteran had additional time beyond January 31, 2013, to submit a claim. The Board acknowledges that it appears service records were added to the record subsequent to the July 2002 decision, including an August 1997 operation report. After consideration of the record, particularly the service medical records of record at the time of the July 2002 decision and the July 2002 rating decision, the Board finds 38 C.F.R. § 3.156(c) does not apply. In order for evidence to be relevant in the context of 38 C.F.R. § 3.156(c), "a record must speak to a matter in issue, in other words, a matter in dispute." Kisor v. Wilkie, 969 F.3d 1333, 1336 (Fed. Cir. 2020). In Kisor v. Wilkie, the Court of Appeals for the Federal Circuit clarified that the subsequently received service department records were not "relevant" within the meaning of 38 C.F.R. § 3.156(c) because the additional records did not speak to the basis of VA's prior decision. The July 2002 rating decision notes that the Veteran received treatment for endometriosis during service but determined the Veteran did not have a postservice diagnosis of endometriosis. Service connection was ultimately granted for endometriosis based on an October 2014 medical opinion. The purpose of 38 C.F.R. § 3.156(c) is "to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Even if the later uploaded service medical records had been associated with the claims file at the time of the 2002 denial, the record would still be absent a postservice diagnosis of endometriosis. The Veteran was not granted service connection due to information in official service department records that existed and had not been associated with the claims file when VA first decided the claim, but instead due to later evidence. Therefore, the benefit of 38 C.F.R. § 3.156(c)(1) is not applicable to this case. Accordingly, the Board finds the earliest possible effective dates for the award of service connection for endometriosis and hysterectomy are the currently assigned effective dates, and the claims for an earlier effective date, for the award of service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.