Citation Nr: 1323565 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 12-14 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date prior to September 23, 2005, for the award of entitlement to service connection for coronary artery obstructive disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to June 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the case was ultimately transferred to the RO in Lincoln, Nebraska. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran was discharged from service in 1974. 2. The presence of coronary artery obstructive disease prior to September 23, 2005, has not been demonstrated. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 23, 2005, for the award of entitlement to service connection for coronary artery obstructive disease have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO sent the Veteran a letter in April 2011 informing him that the RO would be conducting a special review of his previously declined claim of entitlement to service connection for heart disease as required by orders of the United States district court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991) (Nehmer). In this letter, the Veteran was informed of the evidence and information that he should submit. Thereafter, his service connection claim was reviewed and ultimately granted in the September 2011 rating decision on appeal. The Board also finds that VA has met its duty to assist in this case. All pertinent service treatment records, private treatment records, and VA treatment records have been obtained and associated with the record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Earlier Effective Date The Veteran originally claimed entitlement to service connection for heart disease within one month of separation from the military in a July 1974 claim. The claim was denied in a March 1975 rating decision because the medical evidence failed to show a current diagnosis of heart disease. The Veteran subsequently sought to reopen this claim many times through the years. A claim to reopen was most recently denied in February 2006 because no new and material evidence had been submitted. In April 2011, the RO conducted a review of the Veteran's heart disease claim pursuant to an order of the United States District Court in the class-action case of Nehmer. See Nehmer, No. CV-86- 6160. The Veteran was ultimately awarded service connection for coronary artery obstructive disease on a presumptive basis due to exposure to herbicides during service in the Republic of Vietnam, and assigned an effective date of October 14, 2005, the date of private medical evidence confirming the diagnosis of heart disease. In a January 2012 Decision Review Officer decision, an earlier effective date of September 23, 2005, was granted on the basis that the medical evidence confirmed the presence of heart disease at that time. Generally, for the grant of service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b). When a claim for entitlement to service connection is received within one year of separation from the military, the effective date shall be the day after separation or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. That is, 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. § 3.861(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 CAD. 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 applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(2). If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. 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. In this case, the record reflects that the Veteran served in the Republic of Vietnam and was granted presumptive service connection for heart disease based on presumed exposure to herbicides during such service. The Veteran filed an initial claim for service connection for heart disease in July 1974 (within the first month after separation from active military service), which was denied in a March 1975 rating decision. This initial claim and denial is outside the scope of 38 C.F.R. § 3.816(c)(1)-(3). Thereafter, however, the Veteran filed a claim to reopen, received in February 2004 (over six years before ischemic heart disease, to include coronary artery disease, was added to the list of presumptive disabilities in August 31, 2010). His claim to reopen was again denied in December 2004 because no new and material evidence had been submitted. As such, the provisions of 38 C.F.R. § 3.816(c)(2) apply insofar as to the Veteran's subsequent February 2004 claim to reopen. Pertinent to the instant claim, if a Nehmer class member is entitled to disability compensation for a covered herbicide 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. 38 C.F.R. § 3.816(c)(2). With regard to when entitlement arose, the RO awarded an effective date of September 23, 2005, finding this to be the first medical evidence of diagnosed heart disease. The Board similarly finds the evidence does not establish the presence of heart disease prior to September 23, 2005. Specifically, the Veteran's service treatment records document the Veteran's complaints of chest pains and an "abnormal tracing on EKG" in February 1971. The Veteran had complete diagnostic testing, however, which all returned within normal limits. In April 1974, prior to separation from the military, the cardiologist determined the Veteran did not have heart disease. Treatment records immediately after separation indicate the Veteran continued to seek treatment for chest-related complaints, but was not found to have heart disease. In January 1975, the Veteran was afforded a VA examination of the heart, which disclosed that his heart was normal. The Veteran submitted private treatment records from 1977 to 1978 showing he continued to complain of chest pains, but had a normal EKG and other diagnostic tests. In October 1978, the private treatment records note, "some arteriosclerotic heart disease noted in the aorta." A complete physical was done and two weeks later, the physician noted that all tests were negative. The Veteran frequently sought treatment for his chest-related complaints. Diagnostic tests were done throughout the 1970s, 1980s, 1990s, and early 2000s and all returned within normal limits. For example, private treatment records indicate a normal treadmill test in February 1986, negative chest diagnostic tests in August 1988, and negative tests in May 1989 (which also noted comparison results with 1981, which were similarly negative). These records also note the Veteran's brother died of a heart attack sometime in 1986. The Veteran was vigilant about checking for heart disease due to his familial history. A chest X-ray was similarly negative in March 1997. In March 2001, the Veteran was privately seen for left-sided chest pain, etiology undetermined. Diagnostic testing was done, to include EKG, which suggested, "a very low level of likelihood of the presence of any significant coronary artery disease." The Veteran was seen at a VA clinic on December 15, 2003, where chest X-rays were completed and compared with the March 2001 findings. In comparison to the March 2001 findings, the examiner noted, "...pulmonary hyperinflation consistent with chronic obstructive pulmonary disease. Continued mild prominence of the pulmonary arteries consistent with pulmonary arterial hypertension." Thereafter, VA medical records note consistently a diagnosis of hypertension, but not ischemic heart disease. On September 23, 2005, the Veteran once again underwent diagnostic tests where, for the first time, new findings suggestive of heart disease were noted. Specifically, the September 23, 2005, myocardial perfusion study report notes, "Now evident during stress is a small region of decreased perfusion involving the inferior wall towards the apex.... This is a new finding." The VA radiologist diagnosed the Veteran with, "findings suspicious for a new region of probable ischemia involving the inferior wall towards the apex." Based on these findings, the Veteran sought further diagnostic testing at a private facility. Two weeks later, on October 7, 2005, the Veteran underwent cardiac catheterization and a private cardiologist ultimately diagnosed the Veteran with "noncritical coronary obstructive disease." In short, the medical evidence shows well-documented diagnostic testing from the 1970s through the present. Although the Veteran had various chest-related symptoms through the years, it was not until September 23, 2005, that a diagnosis of heart disease was supported. For these reasons, the Board concludes the "date entitlement arose" is no earlier than September 23, 2005. Therefore, that is the earliest possible effective date for the award of service connection. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date prior to September 23, 2005, for the award of entitlement to service connection for coronary artery obstructive disease is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs