Citation Nr: 1316969 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 04-09 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to increased ratings for coronary artery disease (CAD) with hypertension, status post myocardial infarction and coronary artery bypass graft, rated 100-percent disabling from February 7, 1991 to March 31, 1991, 30-percent disabling from April 1, 1991 to October 8, 1996, 100-percent disabling from October 9, 1996 to April 30, 1997, and 30-percent disabling from May 1, 1997. 2. Entitlement to an effective date earlier than February 7, 1991, for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. 3. Entitlement to a rating higher than 10 percent for tinnitus. 4. Entitlement to an effective date earlier than June 11, 2001, for a total disability rating based on individual unemployability (TDIU). 5. Entitlement to an effective date earlier than June 11, 2001, for Dependents' Educational Assistance (DEA) benefits under Chapter 35 of Title 38 of the United States Code. ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active duty from July 1962 to October 1966, including in Vietnam. His commendations include the Purple Heart Medal. These claims come before the Board of Veterans' Appeals (Board/BVA) on appeal from January 2003 and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Just one claim was certified to the Board as on appeal - for an earlier effective date for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. During the course of this appeal, however, as part of the certified claim, the RO included the question of entitlement to increased ratings for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, rated 100-percent disabling from February 7, 1991 to March 31, 1991, 30-percent disabling from April 1, 1991 to October 8, 1996, 100-percent disabling from October 9, 1996 to April 30, 1997, and 30-percent disabling from May 1, 1997. Indeed, both issues are part and parcel of the claim the Veteran perfected his appeal concerning. So the Board since has recharacterized the claim as involving these two issues to simplify its discussion of them. A review of the file also reveals there are three other claims concerning which an appeal has been perfected, so that also must be included and addressed in this decision. In a June 2006 decision, the Board stayed the claim for a rating higher than 10 percent for tinnitus pending resolution of VA's appeal by the U. S. Court of Appeals for Veterans Claims (Court) in Smith v. Nicholson, 19 Vet. App. 63 (2005). The Board therefore also deferred consideration of the claims for an effective date earlier than June 11, 2001, for the TDIU and for an effective date earlier than June 11, 2001, for the DEA benefits under Chapter 35 of Title 38 of the United States Code because they were "inextricably intertwined" with the temporarily stayed claim regarding the rating for the tinnitus. The Smith case since has been resolved, see Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), and the temporary stay resultantly lifted on the adjudication of claims affected by that case, thereby allowing the Board to proceed in adjudicating the Veteran's claim for a rating higher than 10 percent for his tinnitus and the other inextricably intertwined claims for an effective date earlier than June 11, 2001, for his TDIU and for an effective date earlier than June 11, 2001, for the DEA benefits under Chapter 35 of Title 38 of the United States Code. In that same decision temporarily staying and deferring consideration of these other claims, the Board also denied several additional claims and, in pertinent part, upheld the RO's July 2004 severance of service connection for the CAD with hypertension and residuals of a myocardial infarction and coronary artery bypass grafting. The Veteran then appealed the Board's June 2006 decision to the Court. In a Memorandum Decision dated in January 2009 the Court reversed the severance and remanded this matter to the Board for reinstatement of service connection for this disability. The Court also acknowledged the claims the Board had stayed or deferred consideration of and affirmed the Board's decision on all other claims. The Board consequently reinstated service connection for the CAD with hypertension and residuals of a myocardial infarction and coronary artery bypass grafting in a subsequent January 2011 decision and, thereafter, in a rating decision dated in March 2011, the RO specially reviewed the Veteran's claims file to determine whether an effective date earlier than May 8, 2001, for the grant of service connection for this disability might be assignable under Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II). By rating decision dated in March 2011, the RO effectuated the reinstatement and awarded the Veteran an effective date of February 7, 1991, for the grant of service connection. He continues to disagree with the effective date assigned, requesting an even earlier effective date. In a written statement dated in May 2010, he alleged entitlement to service connection for a heart condition, which he later characterized as ischemic heart disease (IHD) secondary to Agent Orange exposure in Vietnam. Presumably, then, he is seeking a grant of service connection for this condition as separate from his already service-connected CAD. In 2010, the RO provided him Veterans Claims Assistance Act (VCAA) notice concerning this claim and scheduled him for a VA compensation examination, but since then has not followed up by adjudicating this claim. The Board therefore is referring this claim to the RO for appropriate action. The claims of entitlement to higher ratings for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, rated 100-percent disabling from February 7, 1991 to March 31, 1991, 30-percent disabling from April 1, 1991 to October 8, 1996, 100-percent disabling from October 9, 1996 to April 30, 1997, and 30-percent disabling from May 1, 1997, entitlement to an effective date earlier than June 11, 2001, for the TDIU, and entitlement to an effective date earlier than June 11, 2001, for the DEA benefits under Chapter 35 of Title 38 of the United States Code are being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. Whereas the Board, instead, is going ahead and deciding the claims for a higher rating for the tinnitus and for an earlier effective date for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. FINDINGS OF FACT 1. The Veteran has a 10 percent rating for his tinnitus, which is the highest possible schedular rating that may be assigned this condition. 2. There is no pending request for benefits related to a heart disability dated prior to February 7, 1991, so that is the date the Veteran first filed a claim for this disability. CONCLUSIONS OF LAW 1. There is no legal basis for assigning a rating higher than 10 percent for tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code (DC) 6260 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria also are not met for an effective date earlier than February 7, 1991, for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, so prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Increased Rating for Tinnitus With regards to the Veteran's claim for a rating higher than 10 percent for tinnitus, the VCAA provisions do not apply. Rather, because this claim is being denied as a matter of law, there is no possibility, reasonable or otherwise, that any notice or assistance could change this outcome or disposition of this claim. Current interpretation of the applicable statutes and regulations entirely dictates the outcome of this claim. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that when the law, and not the underlying facts or development of the facts, are dispositive in a matter, the VCAA has no effect on the appeal); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002) (holding that the VCAA is not applicable to matters involving pure statutory interpretation); see also VAOPGCPREC 5-2004 (June 23, 2004). B. Earlier Effective Date - Service Connection for CAD with Hypertension, Status Post Myocardial Infarction and Coronary Artery Bypass Braft 1. Notice The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, this notice should be provided prior to initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing defect in the provision of the notice can be effectively rectified ("cured") by providing all necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial and instead must be judged on a case-by-case basis. As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, after the Board restored the grant of service connection for the CAD with hypertension and the RO effectuated the Board's decision, the RO did not send the Veteran VCAA notice, timely or otherwise, pertaining to the effective date it had assigned the restoration. This error is nonprejudicial, however, as the RO explained the basis of its action in other documents and, after doing so, the Veteran had time to participate effectively in the adjudication of this claim by responding. That is to say, he evidenced his actual knowledge of the type of information and evidence needed to substantiate this claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). See also Huston v. Principi, 17 Vet. App. 195 (2003) (wherein the Court held that proper VCAA notice, in response to a claim as here for an earlier effective date, includes apprising the Veteran of the need to have evidence of an earlier-filed claim that did not, in the absence of a timely appeal, become final and binding on him based on the evidence then of record). More specifically, in its March 2011 rating decision and April 2011 letter, the RO explained that it had awarded him an earlier effective date of February 7, 1991, for the grant of service connection for his CAD with hypertension pursuant to Nehmer II. Thereafter, he submitted multiple statements in support of this claim, which indicate he understood the RO's action in this regard, but claiming that an even earlier effective date is warranted. Following the filing of these statements, in an SOC issued in November 2011 the RO readjudicated the claim and, in so doing, cited the laws and regulations pertinent to this claim and provided him reasons and bases for its decision assigning this effective date and not an even earlier effective date. Consider also that when, as here, the claim arose in the context of him trying to establish his underlying entitlement to service connection for this disability, and the claim subsequently is granted and he appeals a "downstream" issue such as the effective date assigned, VA does not have to provide him additional VCAA notice concerning this downstream issue because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel also has held that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement is not resolved. And since as mentioned the RO issued an SOC in November 2011 addressing this downstream earlier-effective-date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an even earlier effective date, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this particular claim, and is not prejudiced by any technical notice deficiency along the way, including with regards to the timing and content of the notice he received. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004). He does not assert that VA failed to comply with the VCAA's notice provisions. 2. Assistance VA also as a duty to assist him in obtaining evidence necessary to substantiate this claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO obtained all evidence and records that he identified as potentially pertinent to his claim, including all documents he submitted since his discharge from service, VA and private post-service treatment records and information from the Social Security Administration (SSA). The RO did not afford the Veteran a VA examination in support of this claim (it scheduled him for an examination in support of his additionally raised claim for service connection for a heart condition, see Introduction section of this decision, but he did not report for the evaluation). However, due to the nature of this claim, no examination is needed. Resolution of this claim ultimately turns on when he filed the claim, so an examination or opinion discussing his CAD with hypertension, even retroactively, is not needed to decide this claim fairly. 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C); see also Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past). He does not now assert that VA failed to comply with the VCAA's duty-to-assist provisions. II. Analysis A. Increased Rating for Tinnitus The Veteran is requesting a rating higher than10 percent for his tinnitus. He has submitted numerous written statements in support of this claim, which include a discussion of the etiology of his tinnitus (due to extremely loud cannon fire while serving as a "tunnel rat" during Operation Nevada), but do not include any assertions as to why a rating higher than 10 percent should be assigned. He expressed general grievances pertinent to all of his claims, including that nobody can agree on the degree to which he was poisoned during his active service, that certain VA examinations are inadequate because VA is in the quick-claim denial business, and that VA falsified or unlawfully excluded pertinent documents of record and violated the First, Fifth and Ninth amendments to the U.S. Constitution in denying his claims. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2. Still, though, in determining the present level of disability, VA must consider whether to "stage" the rating. This is done if there have been occasions since one year prior to the filing of the claim for a higher rating when the disability has been more severe than at others, so a staged rating compensates the Veteran for this variance. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See, too, Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (first adopting this practice in the initial-rating context). Tinnitus is a noise in the ear, such as ringing, buzzing, roaring, or clicking; it is usually subjective in type. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (DORLAND'S) 1956 (31st ed. 2007). Given the inherently subjective nature of this condition, a lay person is capable of diagnosing it. Charles v. Principi, 16 Vet. App. 370 (2002). The RO has evaluated the Veteran's tinnitus under DC 6260, which provides that a single 10 percent rating may be assigned recurrent tinnitus, whether the sound is perceived as being in one ear (unilateral), both ears (bilateral), or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2) (2012). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) affirmed VA's long-standing interpretation of DC 6260 as authorizing only a single 10 percent rating for tinnitus regardless of whether it is perceived as unilateral or bilateral or elsewhere in the head. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Citing Supreme Court precedent, the Federal Circuit Court explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Finding that there was a lack of evidence in the record suggesting that VA's interpretation of DC 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit Court concluded that the lower Court had erred in not deferring to VA's interpretation. As the pertinent DC and regulations expressly preclude a schedular rating higher than 10 percent for tinnitus, the Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (if the disposition of the claim is based entirely on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law). In certain circumstances, a claimant may be assigned an increased rating on an extra-schedular basis. The question of whether such a rating may be assigned on such a basis is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign a rating on an extra-schedular basis in the first instance, when the question is raised either by the claimant or reasonably by the evidence of record the adjudicator must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321(b)(1) for this special consideration. Barringer v. Peake, 22 Vet. App. 242 (2008). The designee is authorized to approve the assignment of an extra-schedular rating if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the claimant or the evidence raises the question of entitlement to an increased rating on an extra-schedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is adequate, and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the Rating Schedule and the assigned schedular rating is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. § 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id. A TDIU is also a component of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU may be granted when a Veteran's service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining substantially gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). See also 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.18 and 4.19, including as concerning what constitutes substantially gainful versus just marginal employment. A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for [a] TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-5 (1994). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Here, the Veteran has not raised the question of whether he is entitled to an increased rating for tinnitus on an extra-schedular basis. Even assuming otherwise, the Rating Schedule contemplates all levels of his recurrent tinnitus, which by definition includes various types of sound, whether and to whatever extent that sound is perceived in one ear, both ears, or elsewhere in the head. Referral, then, of this claim for extra-schedular consideration is unnecessary. The Veteran also has not raised a derivative claim for a TDIU, that is, based on his tinnitus. See Roberson v. Principi, 251 F.3d at 384 (only if claimant alleges unemployability on account of the specific disability at issue would the Board have to assume jurisdiction over a derivative TDIU claim). In any event, the Board need not consider such a claim as he has been in receipt of a TDIU during the entire course of this appeal. Indeed, as explained, one of his other claims concerns the effective date for his TDIU. His argument focusing on the etiology of his tinnitus is irrelevant to this decision as the RO already awarded him service connection for this condition based on his duties and responsibilities in service, in other words, already conceded his tinnitus is a consequence, so related to his service. His general, abstract grievances, even assuming they relate to this particular claim, are unsubstantiated by the record. There is no evidence of impropriety of any sort on VA's part, including with regards to the Constitution. See U.S. v. M. Genzale Plating, Inc., 723 F. Supp. 877, 885 (E.D.N.Y. 1989) (holding that vague assertions of unfairness on the part of the government, without more, cannot be molded into constitutional violations). Inasmuch as he has a 10 percent rating for his tinnitus, which is the highest schedular rating that may be assigned this condition, and a referral for an extra-schedular rating is not warranted, the Board concludes there is no legal basis for assigning the tinnitus an even higher rating. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.87, Diagnostic Code (DC) 6260 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). B. Earlier Effective Date - Service Connection for CAD with Hypertension, Status Post Myocardial Infarction and Coronary Artery Bypass Graft The Veteran wants an effective date earlier than February 7, 1991, for this disability, specifically, a date of July 31, 1989, the day he became totally disabled because of it. According to written statements he has submitted during the course of this appeal, in granting him an earlier effective date of February 7, 1991, but not even earlier, he believes the RO ignored the legitimate evidence pertinent to this claim, including March 2004 physicians' reports regarding his service-connected disabilities, and also ignored pertinent decisions of the United States District Court, including Nehmer II and the 1991 decision regarding his 100 percent rating for Agent Orange exposure, SSA's decision concerning his 100 percent rating as of July 31, 1989, and the scientific community's evidence in regards to Agent Orange exposure. He generally criticizes the VA claims processing system, asserts that VA has violated the Constitution and that its behavior in this regard is a major threat to national security, and also asserts that VA has acted deliberately deceptive and engaged in criminal activity. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i). For reopened claims, the effective date shall be the date of receipt of the reopened claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The statutory framework simply does not allow the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated on a reopened claim. Sears v. Principi, 16 Vet. App. 244, 248 (2002). For the Veteran to be awarded an effective date based on an earlier claim, he has to show clear and unmistakable error (CUE) in the prior denial of the claim, in other words, there has to be a successful collateral attack of an earlier final and binding decision. Flash v. Brown, 8 Vet. App. 332, 340 (1995). There is no basis for a free-standing earlier effective date claim from matters addressed in a prior final and binding decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). "Claim" is defined broadly to include a formal or an informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a) (2012); Servello, 3 Vet. App. at 199. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). If a formal claim for compensation previously has been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b) (2012). The date of an outpatient or hospital examination at, or admission to, a VA hospital will be accepted as the date of receipt of the informal claim to reopen when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1). The date of receipt by VA of records from a private physician will be accepted as the date of an informal claim to reopen when the evidence represented by those records is within the competence of such physician and shows the reasonable probability of entitlement to the benefits. 38 C.F.R. § 3.157(b)(2). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by a claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In this case, in May 1967, the RO received its first correspondence from the Veteran, a VA Form 21-526 (Veteran's Application for Compensation or Pension). Therein, he noted "scars on forehead and hearing" as the diseases or disabilities for which the claim was being made. Based on this notation, this document cannot be construed as an initial claim for service connection for any type of heart disease inasmuch as there was no express or implied mention of heart disease of any sort. In December 1968, the RO again received a VA Form 21-526 from the Veteran, this time noting a "Leg Injury Due to Gunshot Wounds" as the disease or disability for which the claim was being made. But, again, based on that notation, that document cannot be construed as an initial claim for service connection for any type of heart disease inasmuch as there again was no express or even implied mention of heart disease of any sort. More recently in September and August 1986, the Veteran submitted written statements raising claims for compensation for tinnitus, hearing loss, a leg muscle injury, and disorders of his left forearm, left hand, and back of his upper left thigh. But yet again he did not mention having heart disease of any sort, much less related or attributable to anything that had occurred during his military service. On February 7, 1991, he submitted another written statement indicating he wanted to open a claim for Agent Orange dioxin poison and posttraumatic stress disorder (PTSD). He attached private hospital reports to his claim showing that, in January 1990, he had been hospitalized for an attempted coronary arteriogram, which was unsuccessful due to an aortic vascular obstruction. He was discharged with the following diagnoses: acute unstable angina pectoris, aortoiliac vascular disease, a history of a lumbar laminectomy, a twenty pack year smoking history, partial impotence, probable organic, suspect vascular, and penicillin allergy. The RO initially assigned its grant of service connection for CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, an effective date of May 8, 2001. But in another rating decision since issued in March 2011, however, the RO conducted a Nehmer review. The RO did so in response to VA adding ischemic heart disease to the disabilities listed in 38 C.F.R. § 3.309(e) as being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). Ischemic heart disease is defined as "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina". 38 C.F.R. § 3.309(e). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a) (2012). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). If a claim is reviewed on VA's initiative within one year from the effective date of the law or VA issue, or at the request of a claimant received within one 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). However, if a claim is reviewed on VA's initiative more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of the administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114(a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. However, after VA added ischemic heart disease as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e), the Federal Circuit Court made the legislation retroactive. See Liesegang v. Secretary of VA, 312 F.3d 1368 (Fed. Cir. 2002). For many years, VA has been involved in litigation regarding compensation for Vietnam Veterans exposed to Agent Orange. In May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985. Nehmer I at 1409. The District Court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations. Nehmer II at 1183. In short, District Court orders in the Nehmer litigation have created an exception to the generally applicable rules in 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114. The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, which became effective on September 24, 2003. That regulation defines a "Nehmer class member" to include a Veteran who has or died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i), (b)(2)(i). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) 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 May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, 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. 38 C.F.R. § 3.816(c)(1), (c)(2). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) 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; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(i), (ii). Here, the Veteran's claim for heart disease was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for this disease. The effective date of the claim for service connection therefore must be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.816(c)(2). The Veteran's entitlement arose in January 1990. Thereafter, on February 7, 1991, he filed a claim for service connection for heart disease. On that date, he also submitted medical records confirming he had heart disease. Because this is an original claim for service connection, rather than a claim to reopen, the receipt date of those records, which is the same as the receipt date of the claim, governs for the purpose of determining whether they constitute an informal claim under 38 C.F.R. § 3.157. There is no documentation in the record establishing that the Veteran had submitted another claim, formal or otherwise, for the same disability at any time prior to February 7, 1991. The Board acknowledges his assertions, including that he became totally disabled on July 13, 1989, because of this disability, but even if true it does not change the fact that he did not actually file a claim for heart disease prior to February 7, 1991. See Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA). The Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. Rather, according to the Federal Circuit Court, "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." MacPhee at 1327 (bold type added for emphasis); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"); 38 C.F.R. § 3.155(a) ("Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs . . . may be considered an informal claim. Such informal claim must identify the benefit sought."). The determinative issue in this case, then, is when did he actually file such a claim, and none of his assertions speak to this matter, not his assertions regarding ignored evidence (he does not claim that VA ignored any claim filed prior to February 7, 1991), nor his assertions regarding VA's incompetence, deceptiveness, and criminality. Consequently, the Board concludes the criteria are not met for an effective date earlier than February 7, 1991, for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2012). Moreover, since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application. 38 C.F.R. §§ 3.102, 4.3. ORDER The claim for a rating higher than 10 percent for tinnitus is denied. The claim for an effective date earlier than February 7, 1991, for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, also is denied. REMAND Prior to adjudicating the claims for increased ratings for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, rated 100-percent disabling from February 7, 1991 to March 31, 1991, 30-percent disabling from April 1, 1991 to October 8, 1996, 100-percent disabling from October 9, 1996 to April 30, 1997, and 30-percent disabling from May 1, 1997, and for an effective date earlier than June 11, 2001 for the TDIU and DEA benefits under Chapter 35 of Title 38 of the United States Code, additional development of these remaining claims is necessary. As indicated in the Introduction section of this decision, in January 2011, the Board reinstated the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. Thereafter, the Veteran disputed the disability ratings assigned this disability, but the RO did not provide him VCAA notice regarding his claim for higher ratings explaining the basis of its action or alerting him to the type of evidence and information he needed to submit to substantiate this claim. Typically, when a claimant files a claim for service connection and the RO provides him VCAA notice pertaining to that claim, if the RO later grants the claim, it is not obligated to also provide him further notice concerning the "downstream" elements of the claim, either regarding the disability rating or effective date assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. at 486. This case differs, however, as the RO initially granted the Veteran service connection for this disability effective 1991 and this grant remained in effect for years before the RO severed it. This claim thus ensues not from an appeal on a claim for service connection, but rather from an appeal on a claim for reversal of a severed service connection. The Veteran is therefore entitled to VCAA notice on the claim. Unlike the claim for an earlier effective date for the grant of service connection for the CAD with hypertension, status post myocardial infarction and coronary artery bypass graft (discussed previously), the Veteran would be prejudiced were he not to receive such notice prior to the Board's adjudication of this claim. Although the RO explained the bases of its action of assigning certain disability ratings in a rating decision dated March 2011 and an SOC issued in November 2011, the Veteran later submitted written statements indicating he clearly does not understand the nature of this claim. For instance, in a letter dated in May 2011, he congratulates the RO for its March 2011 rating decision restoring various benefits, but then refers to the ratings assigned and indicates, "Question, does anybody at all know what the hell is going on in this part of the rating decision." He points out that there are periods of time, during which he is assigned a 100 percent rating for his disability [versus others when he is not, having instead a lesser 30 percent rating]. In addition, in a written statement dated in November 2011, he raises a claim of CUE in the March 2006 rating decision, a non-final decision. There can only be CUE in a prior, final and binding, decision. 38 C.F.R. § 3.105(a). Given, however, his assertions and the duties VA is obligated to satisfy pursuant to the VCAA, the RO must provide him adequate notice concerning this claim. This notice should include information pertaining to claims based on CUE, but also should remind him that CUE is a means of collaterally (i.e., after-the-fact) attacking a prior, final and binding, decision. As also indicated in the Introduction section of this decision, in June 2006 the Board temporarily deferred a decision on the claims for an effective date earlier than June 11, 2001 for the TDIU and DEA benefits under Chapter 35 of Title 38 of the United States Code because these claims were "inextricably intertwined" with the temporarily stayed claim for a rating higher than 10 percent for the tinnitus. Thereafter, the RO associated an entire folder of evidence with the Veteran's claims file, but did not consider that evidence in support of the intertwined or stayed claims. Rather, after the Board's action, the RO never again mentioned the claims. Arguably, VA has not provided the Veteran adequate notice on the claims for an effective date earlier than June 11, 2001 for his TDIU and DEA benefits under Chapter 35 of Title 38 of the United States Code. The Board determined earlier in this decision that he is not entitled to a rating higher than 10 percent for his tinnitus, as a matter of law. But these claims concerning the effective date for his TDIU and DEA benefits benefits under Chapter 35 of Title 38 of the United States Code are now inextricably intertwined with the pending claim for increased ratings for his CAD with hypertension, status post myocardial infarction and coronary artery bypass graft. The Board thus defers a decision on these inextricably intertwined claims until the pending claim regarding the ratings for his CAD, etc., is resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are inextricably intertwined when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one claim may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require the claims be adjudicated together.). See also Hoyer v. Derwinski, 1 Vet. App. 208 (1991) and Holland v. Brown, 6 Vet. App. 443, 446 (1994). In the meantime, however, for the sake of completeness, the RO should provide the Veteran adequate notice regarding these claims. Accordingly, these other claims are REMANDED for the following additional development and consideration. 1. Provide the Veteran adequate VCAA notice on his claim for increased ratings for CAD with hypertension, status post myocardial infarction and coronary artery bypass graft, including a discussion on claims predicated on CUE, also regarding his claims for an effective date earlier than June 11, 2001, for his TDIU and DEA benefits under Chapter 35 of Title 38 of the United States Code. 2. After giving him opportunity to respond to this VCAA notice, readjudicate these claims based on all of the evidence of record, including that which the RO/AMC has associated with the claims file since the Board temporarily deferred a decision on two of these claims in June 2006. If any of these claims continues to be denied, send the Veteran an SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Board intimates no opinion as to the ultimate disposition of these claims warranted, but advises the Veteran that he has the right to submit additional evidence and argument concerning these claims that are being remanded, rather than decided. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). These claims must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs