Citation Nr: 1301399 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 12-27 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date for service connection for ischemic heart disease/coronary artery disease, prior to August 2010. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. On August 31, 2010, a final rule was published in the Federal Register amending 38 C.F.R. § 3.309(e) concerning presumptive service connection for certain diseases associated with herbicide exposure, including ischemic heart disease. 2. The Veteran filed a claim for service connection for ischemic heart disease on October 4, 2010. 3. Service connection for ischemic heart disease was granted in a March 2011 rating action, effective from August 31, 2010. 4. The Veteran had no claim pending prior to August 2010. CONCLUSION OF LAW The criteria for an effective date prior to August 2010, for service connection for ischemic heart disease/coronary artery disease have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114(a)(1), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). In this case, however, the Veteran's claim was one for service connection. That claim was granted, and he now appeals the downstream issue of the effective date assigned for that grant. Because his claim was granted, the purpose of the VCAA notice requirements were fulfilled, and no further notice under that law is required. In any event, the record does show that following his disagreement with the effective date, the Veteran was provided a statement of the case which outlined the criteria for establishing effective dates. He was also given an opportunity to present testimony at a hearing, but he declined. Regarding the duty to assist, because there is no dispute as to the facts, no further development of them is warranted. II. Legal Criteria/Analysis The Veteran has expressed disagreement with the assigned effective date of August 31, 2010, which the RO granted for service connection for ischemic heart disease/coronary artery disease. According to the Veteran, the effective date should have been assigned from May 7, 2008, the date in which VA treatment records indicate that he was diagnosed with coronary artery disease. The Veteran's DD-214 shows that he served in Vietnam during the Vietnam Era, and therefore is entitled to presumption of herbicide exposure. 38 C.F.R. §§ 3.307, 3.309. The Veteran submitted his initial claim for service connection for ischemic heart disease on October 4, 2010. This was the Veteran's first claim for any VA benefits. In a March 2011 rating decision, the RO granted service connection based on presumptive service connection, which was supported by evidence of a May 7, 2008, diagnosis of coronary artery disease, and assigned an effective date. Generally, the effective date of an award of service connection based on a claim received more than one year after an appellant's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In the instant case, since the claim was received more than a year from discharge from service, the effective date for the Veteran would have been assigned the later of the date of receipt of claim, here October 4, 2010, or the date entitlement arose, here May 7, 2008. Id. Therefore, the effective date would have been October 4, 2010. However, effective August 31, 2010, a final rule was published in the Federal Register amending 38 C.F.R. § 3.309(e) concerning presumptive service connection for certain diseases associated with herbicide exposure. The amendment established presumptive service connection for three new diseases, including ischemic heart disease. These changes were made applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date. As the Veteran's claim was received after the effective date of the law, the presumptive service connection change was applicable to the immediate case. If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. Id. In the instant case, since the RO received the Veteran's claim for service connection for ischemic heart disease on October 4, 2010, which was within a year of the regulatory change which occurred on August 31, 2010, the Veteran's effective date for service connection for ischemic heart disease/coronary artery disease was assigned as August 31, 2010. While the Board acknowledges that the Veteran was diagnosed with coronary artery disease on May 7, 2008, the date of the claim for this issue is October 4, 2010. No earlier claim is of record. Pursuant to the applicable regulations, the effective date for the issue became August 31, 2010. Id. Consequently, no earlier effective date is permitted by law. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 3.114(a)(1). For these reasons, the Board finds that an earlier effective date for service connection for ischemic heart disease/coronary artery disease is not warranted. ORDER The claim for entitlement to an earlier effective date for service connection for ischemic heart disease/coronary artery disease is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs