Citation Nr: 0002691 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 97-29 540A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to July 8, 1996, for the grant of service connection for sinusitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant had active service in the Army from April 1981 to April 1982, and thereafter was a member of the Army National Guard until he enlisted in the Air Force, serving on active duty from October 1985 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which assigned a July 1996 effective date for the grant of service connection for a sinus disability. In July 1992, the St. Petersburg RO had denied the appellant's original claim of service connection for residuals of sinus surgery. He was notified of this action in August 1992, but he did not submit a timely appeal. The appellant subsequently submitted a claim for the reopening of this issue and asked that his case be transferred from Florida to Alabama as he had moved in the meantime. The RO issued a rating decision in July 1997, in which service connection for sinusitis was granted, effective as of July 8, 1996, the date of the claim for reopening. The appellant believes that the proper effective date would be the date of his original claim, October 31, 1991. The Board notes that the RO issued a rating decision in February 1998, in which the evaluation for the appellant's back disability was increased from 20 percent to 40 percent and entitlement to service-connection for a psychiatric disorder secondary to the back disability was granted. As of March 1999, the appellant had neither initiated nor completed the procedural steps necessary for an appeal of either of these issues, although they were obliquely addressed in the December 1999 Informal Hearing Presentation submitted by the appellant's representative. Therefore, the Board has not considered them in its consideration of the claim on appeal. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. On October 31, 1991, the appellant submitted an application for benefits to the VA; he claimed entitlement to service connection as the result of sinus surgery performed at Elgin Air Force base in December 1989. 3. In July 1992, the St. Petersburg RO denied the appellant's original claim of service connection for residuals of sinus surgery, classified as nasal polyps, status post surgery; he did not submit a timely appeal. 4. The appellant submitted a claim for the reopening of this issue in July 1996. The RO issued a rating decision in July 1997, in which service connection for sinusitis was granted, effective as of July 8, 1996, the date of the claim for reopening. The grant was based on service medical records which showed that the appellant had been on profile for recurrent sinusitis in November 1989, and then underwent a transnasal polypectomy in December 1989. 5. The proper effective date for the award of service connection for sinusitis is October 2, 1991, the day following separation from service, based on service medical records that were not of record at the time of an earlier final denial. CONCLUSION OF LAW The criteria for assigning an effective date of October 2, 1991, for an award of service connection for sinusitis have been met. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.156(c), 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the appellant's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, the claim is not inherently implausible. The Board also finds that the VA has satisfied its statutory obligation to assist the appellant in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The appellant's DD Form 214 shows that he was separated from service on October 1, 1991. On October 31, 1991, the RO received a VA Form 21-526 (Veteran's Application for Compensation or Pension), in which the appellant presented a claim for entitlement to service connection for sinus surgery performed in December 1989. The claims file reflects that the RO attempted to obtain the appellant's service medical records for his first period of service in the Army in November 1991, and then a request was made in June 1992, for the Air Force records. The appellant's Air Force service medical records apparently could not be located. The RO in St. Petersburg subsequently issued a rating decision in July 1992, which, in pertinent part, denied service connection for nasal polyps, status post surgery. Notice of that decision and of the right to appeal said decision was sent to the appellant in August 1992. The Board notes that the law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final. 38 U.S.C.A. § 7105. As the appellant did not file a timely notice of disagreement with that rating decision, the July 1992 rating decision which denied service connection for nasal polyps, status post surgery, is final. 38 U.S.C.A. § 7105. The appellant submitted a written statement to the RO in July 1996, in which he requested a reconsideration of his claim of entitlement to service connection for a sinus condition. He enclosed copies of service medical records which revealed that the appellant had been issued a profile in November 1989, due to recurrent sinusitis and that he had undergone a transnasal polypectomy in December 1989, at AFSC Regional Hospital at Eglin Air Force Base. The Board also notes that the appellant underwent a VA requested examination of the nose and sinuses in December 1991, approximately three months after discharge; very early polyposis (development of multiple polyps) was diagnosed by the examiner. Where new and material evidence consists of a supplemental report from the service department, including official service department records which presumably had been misplaced and have now been located and forwarded to the VA, are received after a final decision, the former decision will be reconsidered. The Board also notes that retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of new and material evidence from the service department must be supported adequately by medical evidence. 38 C.F.R. § 3.156(c). Additionally, the effective date of the award based on the receipt of additional service department records, is "[t]o agree with evaluation (since it is considered these records were lost or mislaid) or the date of receipt of claim on which the prior evaluation was made, whichever is later, subject to the rules on original claims filed within 1 year after separation from service." 38 C.F.R. § 3.400(q) (2). As noted above, when a claim for service connection benefits is filed within a year of the veteran's separation from the service, the effective date of an award of disability compensation is the date following separation from active service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). Review of the record discloses that the appellant did submit copies of service medical records in July 1996 that were not included in the service medical records which were reviewed and considered by the RO in July 1992. Moreover, according to the July 1997 rating decision which granted service connection for sinusitis, the appellant was placed on profile in November 1989 for recurrent sinusitis and then underwent surgery for the removal of nasal polyps in December 1989. The service medical records of record in July 1992 did not include any information regarding the sinusitis or the transnasal polypectomy, while the service medical records received in July 1996 did provide said information. Thus, the Board finds that the RO decided to grant service connection for sinusitis in part, on the basis of the receipt of service medical records previously not considered by the RO and that those service medical records constitute new and material evidence under the provisions of 38 C.F.R. § 3.156(c). Therefore, after resolving any doubt in the appellant's favor, the Board finds that the record supports the claim for entitlement to an effective date of October 2, 1991, the day after the appellant's separation from service, for the award of service connection for sinusitis. 38 U.S.C.A. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c), 3.400(q)(2). It is noted that this decision is limited to the assignment of the award of service connection, and to that extent is resolved in the appellant's favor. The question of what evaluation to be assigned was not before the Board and is not addressed herein. ORDER An effective date of October 2, 1991, for the award of service connection for sinusitis, is granted. MICHAEL D. LYON Member, Board of Veterans' Appeals