Citation Nr: 1334607	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  13-07 653	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an effective date earlier than May 6, 1996, for the grant of service connection for coronary artery disease, status post myocardial infarction and coronary artery bypass graft; angioplasty (coronary artery disease).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

S. Lipstein

INTRODUCTION

The Veteran served on active duty from September 1960 to March 1961 and from August 1963 to August 1966, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge.  

This appeal to the Board of Veterans' Appeals (Board) is from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for coronary artery disease, and assigned a rating of 100 percent, effective May 6, 1996.

The Veteran and his spouse testified at a September 2013 hearing held before the undersigned Veterans Law Judge (VLJ).

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).


FINDING OF FACT

The Veteran did not submit a claim, either formal or informal, for service connection for coronary artery disease until May 6, 1996.


CONCLUSION OF LAW

Entitlement to an effective date prior to May 6, 1996 for the grant of service connection for coronary artery disease is not warranted.  38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.400 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Criteria & Analysis

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002). 

The basic facts are not in dispute.  As the RO noted, the Veteran's initial application for service connection was filed with VA on May 6, 1996, and indeed, the Veteran does not contend otherwise.  

The Veteran seeks an effective date earlier than May 6, 1996, for this disability, specifically, back to March 1987 when he had his first heart attack.  He generally asserts that his previous representative discouraged him from filing a claim of service connection for coronary artery disease.

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).  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).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means 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).

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

The Veteran initially filed a claim of service connection for heart disability on May 6, 1996, and the RO denied service connection in an unappealed September 1996 rating decision.  The Veteran subsequently sought to reopen his claim, and in a November 2010 rating decision, the RO granted service connection and assigned May 6, 1996, as the effective date of the grant of service connection for heart disability in light of the Veteran's Vietnam service and the provisions of 38 C.F.R. § 3.816 (codifying the effective-date rules required by orders of a United States district court in the class-action case of Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).  38 C.F.R. § 3.816(a).

Thus, the RO granted service connection and a 100 percent evaluation effective the date the Veteran's original claim of service connection for heart disability was filed with VA.  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Thus, notwithstanding the Veteran's credible report of having prior heart attacks, because, as he acknowledged during the September 2013 Board hearing, he did not file a formal or informal application for service connection prior to May 6, 1996, VA is precluded, as a matter of law, from granting an effective date prior to May 6, 1996, for service connection for heart disability.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  

In denying this claim, the Board again acknowledges the Veteran's decorated combat service in Vietnam as reflected by his receipt of the Combat Infantryman Badge.  The Board notes, however, that the Veteran's arguments essentially constitute a theory of equitable relief.  Although the Board denies the claim as a matter of law, the Board reiterates that it is sympathetic to his claim.  The Board, however, is without authority to grant this claim on an equitable basis and instead is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  


ORDER

Entitlement to an effective date earlier than May 6, 1996, for the grant of service connection for coronary artery disease is denied.





____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs