Citation Nr: 0003854 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 96-50 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than March 28, 1990, for service connection for residuals of shell fragment wounds to the right shin. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD R. E. Smith, Counsel INTRODUCTION The veteran had active military service from September 1949 to October 20, 1952, and for a 3-day period in August 1954. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision by the Department of Veterans Affairs (VA), New York, New York Regional Office (RO). In March 1998 the Board denied the veteran's claim for an effective date earlier than March 28, 1990, for service- connected residuals of shell fragment wounds to the right shin. The veteran appealed. In May 1999 the United States Court of Appeals for Veterans Claims (Court) vacated that part of the Board decision denying an earlier effective date for the veteran's shell fragment wound of the right shin and granted a joint motion for remand. The case was then returned to the Board for further appellate consideration consistent with the joint motion. FINDINGS OF FACT 1. In an unappealed March 1953 rating decision, the RO denied service connection for a right knee disability (claimed as a shell fragment wound injury to the right knee). 2. A service department document received in 1992 shows the veteran was awarded the Purple Heart for wounds sustained in action. 3. A scar on the veteran's right leg resulting from a shrapnel wound was noted on the veteran's medical examination for service discharge in October 1952 and subsequent thereto, to include his initial postservice VA examination in February 1953. CONCLUSION OF LAW The criteria for an effective date of October 21, 1952 for service connection for a right shin scar have been met. 38 U.S.C.A. §§ 1110, 1131, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.156(c), 3.303, 3.400(b)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the time of the March 1953 rating action denying the veteran entitlement to service connection for a right knee disability (claimed as an injury to the right knee) and subsequently construed by the RO as a denial of a shell fragment wound of the right leg (see rating actions dated in January 1954 and later), the veteran's claims file included his service medical records and a report of a VA examination afforded the veteran in February 1953. The veteran's service medical records did not show treatment for shell fragment wounds. However, the veteran's medical examination for service discharge in October 1952 noted the presence of an old shrapnel wound of the right leg. On the veteran's VA examination in February 1953, a history of shell fragment wound to the right shin sustained in Korea was noted. A superficial scar on the pretibial area at the junction of the middle and lower third of the right leg, about 1 1/2 inches in length was found on objective examination. The veteran was notified that same month of the March 1953 rating decision which included a denial of service connection for a left leg scar as well as the denial of service connection for a right knee disability that same month. In March 1953, the veteran's representative notified the RO the veteran was informed of the denial of service connection for a left leg scar and that he wanted to correct the record to show that he was claiming service connection for a shell fragment wound to the right leg. In May 1953, the RO requested additional service medical records from the National Personnel Records Center (NPRC). In June 1953, the NPRC notified the RO that there were no additional service records found and that the veteran's service medical records had previously been sent to the RO. The veteran was notified in June 1953 that no additional service records were found and that he would continue to receive compensation based on his current status. In an informal hearing presentation dated on September 16, 1991, the veteran's representative requested service connection for residuals of shell fragment wounds to the right shin. In November 1991 the Board remanded the veteran's appeal to the RO for additional development, including adjudication of the issues of service connection for residuals of shrapnel wounds to the lower extremities to include the right shin. A March 1992 rating decision determined there was no new and material evidence to reopen the claim of service connection for a right leg scar (claimed as residuals of shell fragment wounds of the right lower extremity). A service department document was received in September 1992 showing that the veteran had been awarded the Purple Heart for wounds received in action in April 1951. A July 1992 RO rating action granted service connection for shell fragment wounds to the right leg and assigned a zero percent rating from March 28, 1990. A May 1993 RO rating action increased the evaluation for residuals of shell fragment wounds of the right shin from zero to 10 percent, effective September 16, 1991. The veteran has appealed the effective date for the grant of service connection for shell fragment wounds of the right shin and contends that service connection for this disorder should have been granted immediately following his service discharge. The effective date of an award based on an original claim for disability compensation should be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date of the award will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of compensation for a claim reopened after final disallowance is the date of receipt of claim or the date entitlement arose whichever is later. See 38 C.F.R. § 3.400(r). However, where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records, which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c). After reviewing the evidence received, after the March 1953 rating decision, including the service department document showing the veteran was awarded the Purple Heart for wounds received in action in 1951 and the provisions of 38 C.F.R. § 3.156(c) which enable de novo adjudication, the Board is of the opinion that given the service medical record finding of old shrapnel wound of the right leg in October 1952 and the postservice VA medical evidence confirming the presence of a right shin scar attributable to the shell fragment wounds following service, service connection for residuals of shell fragment wound of the right shin should be made effective the day following the veteran's separation from his initial period of active service, October 21, 1952. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.156(c) (1999). ORDER Entitlement to an effective date of October 21, 1952 for service connection for shell fragment wound scar residuals of the right shin is granted. J. E. DAY Member, Board of Veterans' Appeals