Citation Nr: 0003554	
Decision Date: 02/10/00    Archive Date: 02/15/00

DOCKET NO.  94-35 817	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to an effective date prior to February 5, 1993, 
for the grant of service connection for a lumbar spine 
disability and compression fractures at T-11 and T-12.


ATTORNEY FOR THE BOARD

C. Hancock, Counsel


INTRODUCTION

The veteran had active service from October 1983 to July 1987 
in the Marine Corps, and from August 1990 to May 30, 1991 in 
the Army.  He also had service in the National Guard.

This appeal arises before the Board of Veterans' Appeals 
(Board) on appeal of a June 1993 rating decision by the 
Department of Veterans Affairs (VA), Regional Office (RO), in 
Nashville, Tennessee, which granted entitlement to service 
connection for a lumbar spine disability and compression 
fractures at T-11 and T-12, effective as of February 5, 1993.  

A hearing was held at the RO in August 1994.

A Statement of the Case (SOC) sent to the veteran in May 1994 
indicates that his claims for increased ratings for a lumbar 
spine condition (then evaluated as 20 percent disabling) and 
for a compression fracture at T-11 and T-12 (then evaluated 
as 20 percent disabling) were denied.  The veteran, by means 
of a VA Form 21-4138, Statement in Support of Claim, received 
by VA in August 1994, expressed his desire to withdraw his 
claim.  A May 1996 RO rating decision assigned a 100 percent 
for the low back disability.  This represents a complete 
grant of the benefit sought.  Accordingly, the only issue 
which remains in appellate status is as set forth on the 
title page of this decision.


FINDINGS OF FACT

1.  A well-grounded claim has been presented, and all 
evidence necessary for an equitable adjudication has been 
obtained.

2.  The veteran had active duty from October 1983 to July 
1987, and from August 1990 to May 30, 1991.

3.  A VA Form 21-526, Veteran's Application for Compensation 
or Pension, was received by VA on February 5, 1993.

4.  In a June 1993 decision, the RO granted service 
connection for a lumbar spine disability and compression 
fractures of T-11 and T-12, and correctly assigned an 
effective date of February 5, 1993, the date of receipt of 
the claim.


CONCLUSION OF LAW

The criteria for an effective date earlier than February 5, 
1993, for the grant of service connection for a lumbar spine 
disability or compression fractures of T-11 and T-12, have 
not been met.  38 U.S.C.A. §§ 5107(a), 5110 (West 1991); 38 
C.F.R. § 3.400 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

During a hearing at the RO in August 1994, the veteran 
testified that at the time of his separation from active 
service in May 1991 he completed his original VA disability 
benefits claim paperwork, with the assistance of out 
processing personnel, at Fort Campbell, Kentucky.  He added 
that he signed these forms, and that his claim was placed 
with his original service medical records, and was apparently 
lost.  He seeks a retroactive award effective the day of his 
service separation, May 30, 199.  

The veteran has presented a well-grounded claim within the 
meaning of 38 U.S.C.A. § 5107(a) (West 1991), that is, the 
current claim is plausible.  Once it has been established 
that a claim is well grounded, VA has a statutory duty to 
assist the veteran in the development of evidence pertinent 
to his claim.  

In this regard, the Board remanded this case to the RO in 
September 1998 for additional development.  The RO was 
requested to contact all appropriate sources, to include the 
veteran's National Guard unit, in order to obtain the service 
medical records for the veteran's second period of active 
duty, and any associated documents.  In addition, it was 
requested that the contacted organizations be informed that 
the VA was attempting to locate a VA application form, which 
may have been placed in the service medical records when the 
veteran was processing out.  All available evidence has been 
received.  Accordingly, the duty to assist has been met.

The assignment of effective dates of awards is generally 
governed by 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999) and 
38 C.F.R. § 3.400 (1999).  Unless specifically provided 
otherwise, the effective date of an award based on an 
original claim for service connection or a claim reopened 
after final adjudication "shall be fixed in accordance with 
the facts found, but shall not be earlier than the date of 
receipt of application therefor."  38 U.S.C.A. § 5110(a) 
(West 1991).  The implementing regulation clarifies this to 
mean that the effective date of an evaluation and an award of 
compensation based on an original claim or a claim reopened 
after final disallowance "will be the date of receipt of the 
claim or the date entitlement arose, whichever is the 
later."  38 C.F.R. § 3.400 (1999).

With a claim for service connection, the effective date of an 
award will be (1)  the day following separation from active 
service or the date entitlement arose if the claim is 
received within one year after separation from service or (2)  
the date of receipt of claim or date entitlement arose, 
whichever is later.  38 C.F.R. § 3.400(b)(2)(i) (1999) 
(emphasis added).  With a reopened claim where the new and 
material evidence is received after a final disallowance, the 
effective date is the date of receipt of the new claim or 
date entitlement arose, whichever is later.  38 C.F.R. § 
3.400(q)(ii) (1999) (emphasis added).

38 C.F.R. § 3.155 (1999) provides that (a) Any communication 
or action, indicating an intent to apply for one or more 
benefits under the laws administered by [VA], from a claimant 
. . . may be considered an informal claim.  Such informal 
claim must identify the benefit sought.  Upon receipt of an 
informal claim, if a formal claim has not been filed, an 
application form will be forwarded to the claimant for 
execution. If received within 1 year from the date it was 
sent to the claimant, it will be considered filed as of the 
date of receipt of the informal claim.

The service medical records do not contain an application for 
VA compensation benefits.  The veteran was seen at a VA 
facility on November 19, 1991 for a blood test.  He was seen 
again on in January 1992 for complaints associated with his 
service connected back disorder.  He had a history of a 
fracture of the 12th thoracic vertebral body.  He stated that 
he fell yesterday injuring his back.  He had been treated at 
a private facility and had been referred to the VA.  
Subsequently he continued to receive treatment at VA 
facilities for several disorders. 

The veteran submitted VA Form 21-526, Veteran's Application 
for Compensation or Pension, which was received by the RO on 
February 5, 1993.  It is noted that the veteran, in the space 
provided on the VA Form 21-526, specifically, box "9B," did 
not respond to the question:  "Have you previously filed a 
claim for any benefit with VA?"  Also received at this time 
were documents relative to a line of duty determination by 
the military, to include December 1992 lay statements from 
fellow servicemen.

In June 1993, the RO, following its review of the evidence 
then of record; granted entitlement to service connection for 
a lumbar spine disability (described as "bilateral pedicle 
fractures of fifth lumbar vertebra with spondylolisthesis of 
L-5 on S-1 with bilateral radiculopathy") and compression 
fractures of T-11 and T-12, effective as of February 5, 1993, 
the date of receipt of his claim.

To summarize, the veteran indicated he completed his original 
application for VA compensation benefits completed while on 
active duty in May 1991.  VA has made extensive efforts to 
locate the pertinent documents but has been unsuccessful.  
The Board must be guided by the objective evidence of record.  
The only original application for compensation benefits of 
record is the document received by the RO on February 5, 
1993.  

The evidence does not show the presence of an informal claim 
received prior to February 5, 1993.  In June 1993 the RO 
grant service connection for a lumbar spine disability and 
for compression fractures at T-11 and T-12, assigned an 
effective date of February 5, 1993, the date of receipt of 
claim. The Board concurs with the RO's decision.  
Accordingly, the effective date for the grant of service 
connection for a lumbar spine disability and compression 
fractures at T-11 and T-12, is February 5, 1993, the date of 
receipt of claim.


ORDER

Entitlement to an effective date prior to February 5, 1993, 
for the grant of service connection disability compensation 
benefits for a lumbar spine disability and compression 
fractures at T-11 and T-12, is denied.



		
	ROBERT P. REGAN
	Member, Board of Veterans' Appeals