Stowers v. Shinseki, 26 Vet.App. 550 (May 16, 2014)
38 C.F.R. § 3.156(c) & EARLIER EFFECTIVE DATE
Held: “[W]here VA grants service connection based, in part, on a medical nexus opinion that relies on SMRs that were not associated with the claims file at the time VA first decided the claim, and have not been associated with the claims file when VA assigns an effective date for the award of benefits, the Board is obligated to consider VA’s duty to attempt to obtain such records and the potential applicability of § 3.156(c).”
The veteran was denied service connection for a back condition in 1993. He did not appeal and the decision became final. In 2008, he sought to reopen his claim and submitted a letter from his private doctor. The doctor identified the records he relied on in making his opinion – including service medical records (SMRs) that were not of record at the time of the 1993 rating decision. The veteran also identified additional SMRs that were not of record at the time of the 1993 denial.
In December 2008, based on the private medical opinion, as well as a VA medical opinion, the regional office (RO) awarded service connection for the veteran’s back condition, effective February 2008, the date of his request to reopen. The veteran appealed for an earlier effective date, which the RO and the Board denied.
At the CAVC, the veteran argued that the Board erred in finding that VA satisfied its duty to assist because VA failed to obtain all his SMRs. He argued that the newly obtained SMRs, along with the medical opinions, could form the basis for an earlier effective date under 38 C.F.R. § 3.156(c). This regulation allows for an earlier effective date based on newly submitted service records where the claim was previously denied and those records were not in the veteran’s claims file at the time of the prior denial.
Relying on VA’s own published explanation of revisions to § 3.156(c), the CAVC held that when an award of service connection is based, in part, on a medical opinion that relies on SMRs that were not of record at the time of the original decision, and were not in the claims file when VA made its effective date determination, VA must consider its duty to obtain those records and the potential applicability of § 3.156(c). The Court remanded the case to the Board to consider whether VA satisfied its duty to assist.