BVA9501973 
DOCKET NO.  93-07 936     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUE

Entitlement to an effective date earlier than February 10, 1989,
for the evaluation and award of disability benefits for low back
strain.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Auer, Counsel

INTRODUCTION

The veteran served on active duty from November 1985 to September
1986.

This appeal arises from an August 1992 rating decision of the
Department of Veterans Affairs (VA), St. Petersburg, Florida,
Regional Office (RO).  In that decision, the RO implemented a
July 1992 decision of the Board of Veterans' Appeals (Board)
granting service connection for low back strain.  A 10 percent
rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5295
(1993) and was made effective from February 10, 1989.

The veteran's representative has argued that the RO decision of
December 1986 failed to take into consideration the aggravation
of a pre-existing condition that was described in that decision
as scoliosis convexity and lumbosacral strain (congenital or
developmental abnormality) not a disability under the law.  The
Board of Veterans' Appeals (Board) interprets this statement to
mean that the veteran and her representative wish to re-address
the issue of whether the December 1989 denial of service
connection for a low back disorder contained clear and
unmistakable error.  This issue has not been developed for
appellate review and is referred to the RO for additional
development.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran claims that she injured her back in service and
should be granted service connection from September 22, 1986, the
date of her discharge.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims folder.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
assignment of an effective date earlier than February 10, 1989,
for the evaluation and award of disability benefits for low back
strain.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the veteran's appeal has been obtained by the RO.

2.  During service, the veteran sustained injuries to her low
back resulting in low back sprain.

3.  By rating decision in December 1986, service connection for
lumbosacral strain was denied; the veteran was notified of this
decision within a few days.

4.  By a rating decision of September 1987, the RO denied service
connection for lower back strain.  The veteran was notified of
her right to appeal this decision by a letter dated that same
month.

5.  The veteran's claim for entitlement to service connection for
low back strain was received at the RO on February 10, 1989.

6.  By Board decision of July 1992, the veteran's claim for
service connection for low back strain was reopened and granted.

CONCLUSION OF LAW

The proper effective date for the evaluation and award of
disability benefits for low back strain is February 10, 1989.  38
U.S.C.A. §§ 1131, 5107, 5110 (West 1991);
38 C.F.R. §§ 3.102, 3.400 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a) in that she has presented a claim that is
plausible.  The Board is also satisfied that all relevant facts
have been properly developed.

The veteran's service medical records show that she sustained
injuries to her low back resulting in low back strain.  She was
discharged from service due to aggravation of a pre-existing
congenital defect during military service.

In September 1986, the veteran submitted a Veterans Application
for Compensation or Pension at Separation from Service.  A VA
examination was accomplished in November 1986.  The examiner was
unable to detect any pathology and the diagnosis was lumbosacral
strain by history.  By rating decision in December 1986, service
connection for lumbosacral strain was denied.  The RO notified
the veteran of the denial of the claim that same month.

In June 1987, the veteran again applied for service connection
for lumbar back strain.  A VA examination was performed in August
1987; the diagnosis was scoliosis of the spine resulting in
chronic low backache.  The examiner opined that the veteran's
chronic backache related to the problem with her spine.  By a
rating decision of September 1987, the RO denied service
connection for lower back strain.  The veteran was notified of
her right to appeal this decision by a letter dated that same
month.

The veteran did not file an appeal from either of these decisions
and they became final under 38 C.F.R. §§ 20.202 and 20.302
(1993).

On February 10, 1989, the RO received a statement from the
veteran in which she indicated her wish to reapply for service
connection for a low back disorder.  In April 1990, the Board
issued a decision denying service connection for a low back
disorder.  This decision was appealed by the veteran to the
United States Court of Veterans Appeals (Court).  The Court, in
June 1991, ordered that an April 1990 Board decision denying
service connection for low back strain be vacated and that the
Board provide for additional development of the evidence,
including a VA examination.  This development was accomplished,
and by Board decision of July 1992, the claim for service
connection for a low back strain was reopened and granted.  The
Board also determined that the RO decision of December 1986,
denying service connection for a low back strain, did not contain
clear and unmistakable error with regard to the issues of
entitlement to service connection for scoliosis convexity of the
lumbosacral spine or for service connection for a low back
disorder.

The veteran claims that she injured her back in service and
should be granted service connection from September 22, 1986, the
date of her discharge.
Pursuant to 38 U.S.C.A. § 5108, a previously and finally
disallowed claim must be reopened by the Secretary when "new and
material evidence" is presented or secured with respect to that
claim. See 38 U.S.C.A. § 7104(b).  Under 38 C.F.R. § 3.400(r),
the effective date of an award for a reopened claim is the date
of the receipt of the claim or the dated entitlement arose,
whichever is later.  See also 38 U.S.C.A. § 5110(a).  Therefore,
under the circumstances described above, the earliest effective
dated of an award of the veteran's service-connected low back
strain is February 10, 1989, the date of receipt of the
resubmitted claim.

ORDER

The assignment of an effective date earlier than February 10,
1989, for the evaluation and award of disability benefits for low
back strain is denied.

          WARREN W. RICE, JR.
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.