Citation Nr: 1317119 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 12-31 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than December 5, 2010, for the grant of entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to February 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In the July 2011 rating decision, the RO granted entitlement to coronary artery disease associated with herbicide exposure and assigned a 60 percent evaluation effective from December 5, 2010. The Veteran perfected an appeal with regard to the effective date of the grant of service connection. In an October 2012 rating decision, the RO increased the disability rating for the Veteran's coronary artery disease to 100 percent effective from December 5, 2010. In February 2013, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. During the hearing, the Veteran also submitted additional evidence along with a waiver of the RO's initial consideration review of that evidence. The Board has accepted this new evidence as part of the current appeal. A review of the Veteran's virtual VA claims file reveals that all evidence contained therein is duplicative of evidence in the paper claims file or irrelevant to the issue on appeal. The issues of entitlement to service connection for bilateral lower extremity deep venous insufficiency and whether new and material evidence has been receive to reopen the claim of entitlement to service connection for hearing loss have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 December 5, 2010. 3. Service connection for ischemic heart disease was granted in a July 2011 rating decision on the basis that the Veteran was exposed to herbicides during service in Vietnam. 4. Although not yet diagnosed, coronary artery disease was likely present on August 31, 2010. CONCLUSION OF LAW The criteria for entitlement to an effective date of August 31, 2010, for a grant of service connection for coronary artery disease have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties 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 is challenging the effective date assigned following the grant of service connection for coronary artery disease. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to an earlier effective date for the grant of service connection for coronary artery disease. Nevertheless, the record does show that the Veteran was also provided with notice regarding the assignment of effective dates in a December 2010 letter. Moreover, as will be discussed below, the Board has determined, as a matter of law, that there is no legal entitlement to the claimed benefit beyond that granted herein. The notice provisions and duty to assist provisions are not applicable to a claim, where the claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-2004 (June 23, 2004). As the Board has denied the claim as a matter of law, the notice provisions and duty to assist provisions are inapplicable. See e.g., Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc); Wensch v. Principi, 15 Vet. App. 362 (2001). It is also noted that the Veteran testified before the undersigned Veterans Law Judge at the RO in February 2013. In Bryant v. Shinseki, 23 Vet. App. 288 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The transcript of the hearing clearly shows that the undersigned Veterans Law Judge and the Veteran's representative explained the issue on appeal and the applicable laws and regulations to the Veteran. He expressed an understanding that the Board is bound by the current law applicable to his earlier effective date claim. The Veteran indicated that it was his wish to change the law and was informed by the undersigned Veterans Law Judge that the Board is unable to do so. Moreover, because the Veteran's claim is precluded by law beyond that which will be granted herein, there is no potential outstanding evidence pertinent to this claim. To the extent that the possibility of additional evidence was not discussed during the Board hearing, this is harmless error because there is no evidence that could affect the outcome of this claim. Therefore, the requirements of 38 C.F.R. § 3.103(c)(2) were met. For these reasons, the Board concludes that there is no prejudice in proceeding with adjudication of the claim. II. Analysis The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. 38 U.S.C.A. § 5110(g) (West 2002) indicates that, where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. If a claim is reviewed on the initiative of VA 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). 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. Where compensation is awarded pursuant to a liberalizing law or VA issue, which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph, the evidence must show that the claimant met all eligibility criteria for the liberalized benefits on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id. 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the correct effective date for the grant of service connection for coronary artery disease is August 31, 2010. The Veteran's service treatment records confirm that he had service in the Republic of Vietnam during the Vietnam Era. A November 1, 2010, VA outpatient treatment record shows that the Veteran had a prior medical history for numerous diseases. None of his diagnoses included ischemic heart disease, but he did complain of feeling tired all the time. Later that month, the Veteran was hospitalized for an acute myocardial infarction and underwent the placement of four stents. On December 5, 2010, the RO received the Veteran's claim of entitlement to service connection for ischemic heart disease. The Veteran and his representative have not alleged that he filed a claim prior to that date. In a January 2011 written statement, the Veteran's private physician confirmed that he had been diagnosed with coronary artery disease, myocardial infarction, and angina pectoris. In the July 2011 rating decision, the RO granted service connection for coronary artery disease on a presumptive basis due to the Veteran's exposure to Agent Orange during service. The facts in this case are not in dispute. Rather, the Veteran has challenged the law pertaining to effective dates. Throughout his appeal and during the February 2013 hearing, the Veteran has asserted that the effective date of the grant of service connection for coronary artery disease should be the date of his exposure to Agent Orange while in Vietnam. He indicated during his hearing that he understood that the law did not allow for such an effective date, but stated that he wanted law changed. Viewing the evidence in the light most favorable to the Veteran, the Board finds that he met all of the eligibility criteria for the liberalized benefit on August 31, 2010, and that he continuously met those criteria until he filed his claim in December 2010. The Veteran's service treatment records confirmed that he had service in the Republic of Vietnam during the Vietnam era. In such a case, the amended regulation requires only the manifestation of ischemic heart disease to a degree of 10 percent at any time after separation for service connection to be awarded. The Board acknowledges that the medical records and the Veteran's lay statements do not indicate that he was actually diagnosed with coronary artery disease prior to November 2010. However, the VA treatment record dated on November 1, 2010, does show that he reported being tired all of the time. The Board does not believe that this symptom suddenly developed on the date of that evaluation. There is no evidence of a stress test being performed prior to the Veteran's November 2010 myocardial infarction. Therefore, the Board is not able to determine whether the Veteran met the specific requirements necessary for manifesting coronary artery disease to a degree of 10 percent on August 31, 2010. See 38 C.F.R. § 4.104, Diagnostic Code 7005. Nevertheless, the Veteran experienced an acute myocardial infarction less than four months after the effective date of the liberalizing law and reported at least one symptom associated with coronary artery disease prior to his myocardial infarction. The Board is willing to accept that coronary artery disease, by its nature and definition, had been present for at least four months prior to the Veteran's acute myocardial infarction, which required ventricular fibrillation following cardiac arrest. It is impossible to determine what the outcome of a stress test would have been on or before August 31, 2010. Therefore, the Board concludes that the evidence is at least evenly balanced as to whether the Veteran had coronary artery disease manifested to a degree of 10 percent at the time of the liberalizing law on August 31, 2010. Accordingly, under 38 U.S.C.A. § 5110(g), the Veteran is entitled to the effective date of the liberalizing law for his disability, and an effective date of August 31, 2010, is assigned. As noted above, the Veteran alleges that he is entitled to an effective date from his initial exposure to Agent Orange during service. However, there is no evidence that he filed a claim prior to August 2010, and the law precludes the assignment of an effective date earlier than the date of the liberalizing law that led to the grant of compensation, which in this case, is August 31, 2010. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (August 31, 2010). The law is dispositive in this matter, and the Board is bound in its decisions by the statutes enacted by the Congress of the United States and VA regulations issued to implement those laws. See 38 U.S.C.A. § 7104(c). See, generally, Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (the Board must apply "the law as it exists . . . ."). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Accordingly, the earliest possible effective date for the grant of service connection for coronary artery disease is August 31, 2010. The Veteran has indicated that he will pursue other avenues for changing the law applicable to his appeal. ORDER An effective date of August 31, 2010, for the grant of entitlement to service connection for coronary artery disease is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs