Citation Nr: 1333796	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  12-16 939	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to an effective date prior to October 19, 2006 for the grant of service connection for coronary artery disease (CAD) (claimed as a heart condition). 

(The issue of entitlement to a waiver of recovery of an overpayment of compensation benefits in the amount of $3,195.93 is addressed in a separate decision).


REPRESENTATION

Veteran represented by:	New York State Division of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel  


INTRODUCTION

The Veteran had active service from October 1965 to February 1969. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for CAD (claimed as a heart condition) and assigned an evaluation of 10 percent effective October 19, 2006.  

The Veteran initiated an appeal as to the initial rating assigned for CAD.  A July 2008 rating decision increased the evaluation to 30 percent ,effective October 19, 2006.  The Veteran did not perfect his appeal by filing a substantive appeal with respect to the initial rating issue.  The RO closed the appeal as to the initial rating for CAD, and that matter is not before the Board.

In May 2013, a Travel Board hearing was held before the undersigned.  A transcript of the hearing is associated with the record. 


FINDINGS OF FACT

1.  The Veteran is not a Nehmer class member as he does not have service in the Republic of Vietnam. 

2.  An unappealed June 1998 rating decision denied the Veteran service connection for a heart condition; clear and unmistakable error (CUE) in that decision is not alleged.

3.  After the June 1998 rating decision, the first communication from the Veteran expressing an intent to reopen a claim of service connection for a heart condition was received on October 19, 2006.


CONCLUSION OF LAW

An effective date prior to October 19, 2006, is not warranted for the award of service connection for CAD.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.  

As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  The Veteran has had ample opportunity to respond/supplement the record.  It is not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).

All pertinent evidence identified has been secured.  Notably, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings.  Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  In this case, the Veteran and his representative have asserted that the Veteran should be recognized as a Nehmer class member.  38 C.F.R. § 3.816; Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III).  As such, VA has secured the Veteran's service personnel records and made inquiries to the U.S. Army and Joint Services Records Research Center (JSRRC) in an attempt to corroborate whether the Veteran had service in Vietnam; all responses are of record.  The appellant has not identified any pertinent evidence that is outstanding.  VA's duty to assist is met with regard to the claim of entitlement to an earlier effective date for CAD.  

The Board finds that these actions satisfy any duties to notify and assist owed to the appellant in the development of this claim.  

Legal Criteria, Factual Background and Analysis 

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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to this claim.

      Entitlement to an Earlier Effective Date 

Except as otherwise provided, the effective date of an evaluation and award of 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 U.S.C.A. § 5110; 38 C.F.R. § 3.400.

However, in cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above.  38 C.F.R. § 3.816 sets forth the effective date rules 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 Stipulation).  See also Disease Associated With Exposure to Certain Herbicide Agents: Peripheral Neuropathy, 78 Fed. Reg. 54,763 (Sept. 6, 2013).  For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a "covered herbicide disease."  A Vietnam veteran is one who served in the country of Vietnam (including its inland waterways) during the Vietnam War era.  See 38 C.F.R. § 3.307(a)(6).

If a Nehmer class member is entitled to disability compensation for a covered herbicide disease the effective date of the award, if the class member's claim for disability compensation for the covered herbicide disease was either pending before the VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, will be the later of the date such claim was received by VA or the date the disability arose, unless the claim was received within a year following separation from service.  A claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) 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 regulations establishing a presumption of service connection for the covered 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.  See 38 C.F.R. § 3.816(c)(2).  Ischemic heart disease, to include CAD, was added to the list of diseases subject to service connection on a presumptive basis, effective August 31, 2010. 

If the above requirements are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 

A specific claim in the form prescribed by the Secretary 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); 38 C.F.R. § 3.151(a).  A "claim" or "application" is a formal or 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).  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a); see Brannon v. West, 12 Vet. App. 32, 34 (1998).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.  In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable.  Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In this case, the Veteran initially asserted that an earlier effective date was warranted because he first filed for a heart disorder in 1997.  After CAD was added to the list of diseases subject to service connection on a presumptive basis, he asserted that an earlier effective date was warranted under Nehmer.  The Veteran alleges he was physically in Vietnam overnight in November 1967 and in November 1968 when he was in transit to and from Thailand.  

The Board finds that the preponderance of the evidence is against a finding that the Veteran is a Nehmer class member.  To be a Nehmer class member, the Veteran must have service in Vietnam.  The preponderance of the evidence is against such a finding.  The evidence of record, to include the Veteran's service treatment records and service personnel records, does not show that he served in the Republic of Vietnam or the inland waterways of Vietnam.  A Chronological Listing of Service shows that the Veteran served at Takhli Royal Thai Air Force Base in Thailand.  An Air Force Form 7 shows foreign service in Thailand from December 1967 to November 1968.  There are no service documents indicating that the Veteran was in Vietnam at any time during his active duty service.  

At the travel board hearing the Veteran presented a Department of the Air Force letter dated February 18, 1969 addressed to the Internal Revenue Service (IRS) which stated that the Veteran served in a "combat zone" in November 1968 and was paid non-taxable wages.  He waived initial RO consideration of this evidence.  38 C.F.R. § 20.1304.  However, this letter does not identify the location of the "combat zone" and does not otherwise mention that the Veteran served in Vietnam. 

In December 2011, VA received a response from the National Personnel Records Center (NPRC), which stated, "We are unable to determine whether or not this Veteran served in the Republic of Vietnam."  Additionally, the response read, "No records of exposure to herbicides."  In April 2012, VA received a JSRRC response from the Defense Personnel Records Information Retrieval System (DPRIRS).  The response read, "We reviewed the available October through December 1967 and the June 1968 history submitted by the 355th Tactical Fighter Wing (TFW), the higher headquarters for the 355th Aviation Electronic Maintenance Squadron (AEMS) [where the Veteran was assigned], stationed at Takhli Royal Thai Air Force Base (RTAFB), Thailand.  Unfortunately, the history did not report that personnel assigned to the 355th AEMS or the 355th TFW landed at Saigon while in route to Thailand during the October through December 1967 or June 1968 time periods."  Additionally, in May 2012, VA received a response from DPRIRS as to the time period including October through December 1968.  The response stated that "We reviewed the U.S. Air Force (USAF) Station listing for 1968 and found that the 355th Armament & Electronic Maintenance Squadron (AEMS), 355th Tactical Fighter Wing (TFW) was stationed at Takhli Royal Thai Air Force Base (RTAFB), Thailand during the period.  We also reviewed the available October through December 1968 history submitted by the 355th TFW and additional historical data.  We were unable to document or verify that [the Veteran], or personnel assigned to the 355th AEMS, or the 355th TWF landed at Saigon, Republic of Vietnam (RVN), during the October through December 1968 time frame."  

The Board acknowledges that his personnel records, to include his DD Form 214, show that he received the Vietnam Service Medal.  However, receipt of the Vietnam Service Medal alone cannot be used to establish service in the Republic of Vietnam, as it is undisputed that some service members who received the Vietnam Service Medal were never in Vietnam or its territorial waters.  Haas v. Peake, 525 F.3d 1168, 1193, 1197 (2008). 

The only evidence indicating that the Veteran set foot in Vietnam is his lay statements.  VA has been unable to find evidence confirming the Veteran set foot in Vietnam.  The United States Court of Appeals for the Federal Circuit has held that, while the absence of contemporaneous records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

The Board finds that his DD Form 214, the findings of the NPRC, the findings of the JSRRC, his SPRs and STRs, which all reflect no history of service in Vietnam, including no evidence of personnel landings in Saigon, outweigh his reports of layovers in Saigon.  As such, the Board finds that the Veteran did not have service in Vietnam.  As the Veteran did not have service in Vietnam, he cannot be considered a Nehmer class member and the provisions of 38 C.F.R. § 3.816 are not applicable.  

As 38 C.F.R. § 3.816 does not apply in the instant case, the provisions generally controlling effective dates are for application (i.e., 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400).  Accordingly, the only question remaining before the Board at this time is whether, at any time prior to October 19, 2006, the Veteran communicated an intent to reopen his claim of service connection for CAD (claimed as a heart condition).  

A June 1998 rating decision denied the Veteran's claim of service connection for a heart condition; he was notified of the decision by correspondence issued August 18, 1998.  He did not file a timely notice of disagreement (NOD) with that determination, or submit new and material evidence within a year following notice pertaining to that issue (he only filed a NOD as to his claim for service connection for anxiety).  Hence, the June 1998 rating decision, as to the claim of a heart condition, is final based on the evidence of record at the time of its issuance and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision.  38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision).  CUE in the prior rating decision has not been alleged; and the June 1998 final rating decision is a legal bar to an effective date prior to the date of that decision.  While the Veteran has expressed disagreement with the prior final determination, and now seeks an effective date from the date of his original claim (November 1997), there is no legal authority for the Board to set aside the finality of that decision in the absence of an allegation (and showing) of CUE in that decision.

What remains for consideration before the Board is whether following the June 1998 rating decision and prior to October 19, 2006, there was any communication from the Veteran expressing an intent to reopen his claim and seek service connection for CAD.  A close review of the record found none.  Statements during this period included claims for increase for his service-connected hypertension, but did not express an intent to reopen the CAD claim.  For example, a statement dated May 27, 2002, noted that the Veteran had had several tests performed "to determine the severity of my Hypertension and the relationship that it has to my heart."  This statement, even when viewed in the light most favorable to the Veteran, does not express an intent to reopen his claim for a heart disorder.  This is so, in part, because the remainder of the document clearly identified his claim as one "for a much higher rating for my Hypertension disorder." (emphasis in original).  The earliest recorded expression of intent by the Veteran to seek service connection for CAD after the June 1998 rating decision is in a statement received on October 19, 2006.  This communication was accepted as a claim to reopen.  

As the governing law and regulation are clear that (with exceptions not here applicable) an award of service connection for a disability may not precede the filing of a claim seeking service connection for the disability, the law is dispositive.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  There is no statutory authority that would allow VA to grant the Veteran an effective date earlier than October 19, 2006, for the award of service connection and a 30 percent rating for CAD under the circumstances in this case, or for the reasons he has alleged.  Accordingly, the appeal seeking an effective date prior to October 19, 2006 for the grant of service connection for CAD must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

An earlier effective date for the award of service connection and a 30 percent rating for CAD is denied.




____________________________________________
M. C. Graham
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs