Stowers: Newly Discovered SMRs might equal An Earlier Effective Date

Odis C. Stowers v. Shinseki, Opinion Number 12-2823, was decided May 16, 2014 and concerns 38 CFR Section 3.156(c) and its application to a claim for an earlier effective date for a claim that was reopened due to new service medical records that had not been first associated with the file.

The veteran was denied service connection for a back disability in a 1992 and 1993, which became final.  That decision found the SMRs appeared to be incomplete, however, the records showed no in-service complaints or treatment of the back and a VA examination found the back was normal.

The veteran sought to reopen the claim in February 2008.  He submitted a private physician letter diagnosing arthritic back conditions due to in-service injuries.  The physician letter noted service medical records showing back injuries in 1979, 1983-1984, and 1986.  The veteran also submitted a letter saying service medical records from Langley AFB hospital show an extensive history of chronic back pain and authorized the VA to obtain those records.  The claim was reopened, service connected granted, evaluated at 20%, and granted effective February 2008.  The veteran filed a notice of disagreement regarding the effective date.  The Board denied an earlier effective date.

The veteran appealed to the Court arguing the VA failed to obtain complete SMRs, that there is a reasonable possibility that obtaining those records would show the 1983-1984 and 1986 injuries, and that associating those records along with the private physician letter entitled the veteran to an earlier effective date under 38 CFR Section 3.156(c).

Generally, the effective date for a reopened claim is not based on the earliest medical evidence, but the date the application was filed with the VA.  However, Section 3.156(c) creates a large exception.  “If at any time after a claim is denied VA receives or associates with the claims file service department records that existed but had not been associated with the claims file at the time VA first decided the claim, VA will reconsider the claim.”  Id. at *5.  “If VA thereafter makes an award based on whole or in part on these newly associated service department records, the assigned effective date will be the date entitlement arose or the date VA received the previously decided claim, whichever is later.”  Id.

The VA explained in the proposed revisions to this regulation that it would fit a situation where a VA denies a claim because there is no evidence of an in-service injury and then years later the veteran reapplied and submitted new SMRs and a medical opinion.  Id. at *5 and 70 Fed. Reg. 35,388, 35,389 (June 20, 2005).  Of course, this example seems to apply directly to this case.

The Court noted the regulation, explanation of the regulation by the VA, and the VA’s duty to obtain potentially relevant and identified SMRs.  It also noted the veteran identified the missing SMRs at Langley AFB hospital as documenting chronic back problems.  “Nonetheless, the Board did not address the SMRs that Dr. Hunter relied on in forming his opinion that were not previously of record, nor did the Board explain why evidence of the existence of these SMRs is not ‘identification of further available evidence not already of record.’  Thus, the Board failed to explain why these SMRs not previously of record would not be ‘relevant’ to the issue on appeal, i.e., the appellant’s entitlement to an earlier effective date.”  The Court then found the Board decision offered inadequate reasons or bases for its determination and stated if the Board determines they are relevant to the correct effective date than it must remand the case for an attempt to obtain those records.

The Court swept away the VA argument that the SMRs are not relevant because they had already granted service connection for the back because they (1) admit the private physician statement was in part the basis for the award and (2) the VA did not address the responsibility to try to associate official service department records that existed and had not been associated with the claims file when VA first decided the case.  Id. at *9 (citing 38 C.F.R. Section 3.156(c).

The value of this case is limited to a narrow set of cases, but potentially very valuable.  “[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 the VA’s duty to attempt to obtain such records and the potential applicability of Section 3.156(c).”