Citation Nr: 1234908 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 12-17 762 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an effective date earlier than April 19, 2007 for the award of service connection for coronary artery disease. 2. Entitlement to an initial rating in excess of 30 percent for coronary artery disease, prior to January 19, 2011. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1956 to January 1959, and from April 1959 to June 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In August 2012, the Veteran testified during a Board videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of the hearing is of record. After the hearing, the Veteran submitted additional evidence, along with a waiver of initial RO consideration of this evidence. A review of the Veteran's Virtual VA electronic claims file reveals no additional records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On April 19, 2007, the RO first received a statement in support of claim along with medical evidence indicating an intent to apply for compensation for coronary artery disease. 2. The record contains no statement, communication, or other information from the Veteran, prior to April 19, 2007, that can reasonably be construed as constituting claims for service connection for coronary artery disease. 3. Prior to January 19, 2011, the Veteran's coronary artery disease was manifested by chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 19, 2007, for the award of service connection for coronary artery disease are not met. 38 U.S.C.A. §§ 1113 , 1116, 5101, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.114 , 3.151, 3.155, 3.157, 3.307(d), 3.309(e), 3.400, 3.816 (2011). 2. Resolving all reasonable doubt in the favor of the Veteran, the schedular criteria for a 100 percent initial rating for coronary artery disease, prior to January 19, 2011, are met. 38 U.S.C.A. §§ 1155 , 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.159, 4.104, Diagnostic Code 7005 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for increased initial rating for coronary artery disease, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Regarding the Veteran's claims for earlier effective dates for the award of service connection for coronary artery disease, the May 2012 Statement of the Case and July 2012 Supplemental Statement of the Case included citation to the provisions of 38 C.F.R. § 3.400 and § 3.816 and discussion of the legal authority governing effective dates for claims for service connection. A February 2011 letter specifically provided notice regarding the assignment of effective dates. Moreover, the Veteran has been afforded the opportunity to present evidence and argument with respect to the claim for earlier effective date. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. II. Effective Date Claim Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2011). In cases involving presumptive service connection due to herbicide exposure, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." See 38 C.F.R. § 3.816. The Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulations. See 38 C.F.R. § 3.307(a)(6). According to 38 C.F.R. § 3.816(b)(2) a "covered herbicide disease" includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. See 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. Accordingly, the Board concludes the Veteran is a Nehmer class member as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. In the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the status or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. A claim will be considered a claim for compensation for a particular covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. § 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In this case, the Veteran did not file a specific claim for service connection for coronary artery disease; rather in February 2011, the RO sent a letter to the Veteran indicating that it was reviewing his claims file pursuant to the Nehmer Court Order. The Veteran responded in March 2011 indicating that he had been diagnosed with coronary artery disease in October 2005. In May 2011, the RO granted presumptive service connection for coronary artery disease based on presumed exposure to herbicides during his service in Vietnam. The RO assigned an effective date of April 19, 2007 for the award of service connection for coronary artery disease. This is the date of receipt of a VA Form 21-4138, Statement in Support of Claim. While the Veteran did not discuss a heart disability on this form, medical evidence received in conjunction with this claim showed clear evidence of coronary artery disease. As such, the RO determined that the April 2007 Statement in Support of Claim constituted an informal claim for service connection for coronary artery disease. In various written statements and during his August 2012 Board hearing, the Veteran has expressed his belief that he is entitled to an effective date earlier than April 19, 2007, as the medical evidence establishes diagnosis of congestive heart failure as early as 1999. Here, the record does not indicate that the Veteran was denied service connection for coronary artery disease for the period from September 25, 1985, and May 3, 1989. As such, the provisions of 38 C.F.R. § 3.816(c)(1) do not apply. In addition, there is no document of record from May 3, 1989 through April 19, 2007 that can be reasonably viewed as indicating an intent to apply for compensation for coronary artery disease. In fact, the only documents associated with the claims file during this time period relate to the reduction of the Veteran's compensation payments due to the death of his wife in 2005. The Veteran did not submit any statement or medical records referencing any disability, let alone coronary artery disease. The applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for service connection with VA if he/she seeks that benefit. The Board emphasizes that, while VA does have a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Thus, despite the Veteran's contentions to the effect that an earlier claim for service connection for coronary artery disease should be inferred from the record, it was his responsibility to file a claim for service connection for coronary artery disease. In this case, the record does not show that the Veteran filed a claim for service connection for coronary artery disease at an earlier time. As regards the Veteran's contention that the his medical records indicate that he was diagnosed with heart disability well prior to the April 2007 effective date, no such assertions provide for the allowance of an earlier effective date. Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b). Hence, even if the Veteran had submitted treatment records prior to April 2007 reflecting earlier treatment for the disability, as there had been no prior disallowance of this claim, such documents would not constitute an informal claim. The Board also notes that the Veteran has submitted a copy of the VA Veterans Benefits Administration's Nehmer Training Guide, and highlighted the portion that says that the effective date for the award of service connection for a disability is the date the disability arose. However, the training guide specifically states that the effective date is the later of the date the disability arose or date VA received the claim. See also 38 C.F.R. § 3.816(c)(2). In this case, as the April 2007 claim was received after the date the disability arose, the date of claim is the proper effective date. In sum, while the Board has considered the Veteran's assertions, the record simply contains no statement or communication from the Veteran prior to April 2007, that constitutes a pending claim for service connection for coronary artery disease. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. For all the foregoing reasons, the Board finds that an earlier effective date for the award of service connection for coronary artery disease is not warranted. The effective date of award claim is denied. III. Claim for Increased Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson v. West, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Historically, the RO granted service connection for coronary artery disease in a May 2011 rating decision. A 30 percent rating was assigned from April 19, 2007, while a 100 percent rating was assigned from January 19, 2011. The Veteran appealed this decision, contending that he is entitled to a higher initial rating for the period prior to January 19, 2011. As such, the Board will only address this period. The Veteran's coronary artery disease is evaluated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. A rating of 10 percent is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope or where continuous medication is required. A rating of 30 percent is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or when there is evidence of cardiac hypertrophy or dilation on an electrocardiogram, echocardiogram, or x-ray. A rating of 60 percent is assigned when a Veteran had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. In various written statements and during his August 2012 Board hearing, the Veteran reported that he has had chronic congestive heart failure well before April 2007, and that he is thus entitled to a 100 percent rating for the period prior to January 19, 2011 as well. The medical evidence of record reflects a diagnosis of congestive heart failure as early as July 1999. The Veteran also suffered from acute myocardial infarction in January 2002. Continued records from the Nellis Federal Hospital note congestive heart failure. In January 2002 an impression of mild congestive heart failure was indicated. Congestive heart failure was also noted in June 2002. A past medical history of congestive heart failure was noted in June 2004. A February 2005 report reflects a continued diagnosis of congestive heart failure. A February 2006 private report from Dr. A. notes a diagnosis of atherosclerotic heart disease with percutaneous transluminal coronary angioplasty and stent in 2002 of the right coronary artery. A September 2010 report from private physician Dr. A. notes a diagnosis of congestive heart failure. VA outpatient treatment records dated through February 2011 reflect diagnosis of coronary artery disease. A VA ischemic heart disease disability benefits questionnaire completed by the Veteran's physician, Dr. A., and dated in January 2011, reflects a diagnosis of coronary artery disease with an onset in October 2005. Dr. A. also noted chronic congestive heart failure. The MET level at which the Veteran reported symptoms such as dyspnea, fatigue, and syncope was between 3 and 5 METs. Left ventricular ejection fraction was 60 percent. In sum, the record reflects, as the Veteran has alleged, diagnosis of chronic congestive heart failure well prior to the January 19, 2011 award of the 100 percent rating. This diagnosis has been confirmed in treatment records and by the Veteran's treating physician, Dr. A. While chronic congestive heart failure was not indicated until the January 2011 questionnaire, the medical evidence clearly establishes a longstanding history of congestive heart failure and the diagnosis has been consistently noted in treatment records. As such, the Board finds that an initial 100 percent rating for coronary artery disease the period prior to January 19, 2011 is also warranted. The above determination is based on application of pertinent provisions of VA's rating schedule. The Board notes that the Veteran is receiving the maximum schedular rating for this disability. Additionally, the Board finds that at no point relevant to this appeal has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and the Veteran symptoms are adequately considered in the 100 percent schedular rating assigned for the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that an initial 100 percent for coronary artery disease for the period prior to January 19, 2011 is warranted. ORDER Entitlement to an effective date earlier than April 19, 2007 for the award of service connection for coronary artery disease is denied. An initial 100 percent for coronary artery disease, prior to January 19, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs