Citation Nr: 1336606 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-17 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date prior to August 31, 2010, for the award of service connection for coronary artery disease. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU benefits) prior to August 31, 2010. (The issues of whether new and material evidence has been submitted to reopen claims for entitlement to service connection for a low back disability, to include spondylosis of the lumbosacral spine with lumbar strain; hypertension; and an acquired psychiatric disorder (claimed as a nervous condition), as well as entitlement to service connection for gout, hammertoes of both feet, arthritis of the right great toe, and obesity are the subject of a separate decision being issued concurrently.) REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2012, the Veteran and his spouse testified at a video conference hearing held before the undersigned. A transcript of this hearing has been added to the record. In August 2012, the Board remanded this matter for additional evidentiary development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The Board's decision below has granted an earlier effective date for the award of service connection for coronary artery disease. The remaining issue of entitlement to TDIU benefits prior to August 31, 2010, is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents while serving in Korea from December 1968 to December 1969. 2. On June 29, 2001, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for coronary artery disease. 3. The Veteran first met the eligibility requirements for the award of service connection for coronary artery disease on May 7, 2009. CONCLUSION OF LAW The criteria for an effective date of May 7, 2009, for the award of service connection for coronary artery disease have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Even so, an April 2010 letter to the Veteran informed him that an effective date for the award of benefits would be assigned if service connection was granted, and the letter discussed the factors considered in establishing the effective date. In addition, the Veteran is represented by a competent private attorney, who has submitted pertinent legal and factual argument in support of the Veteran's claim. Therefore, no further notice as to this claim is needed. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, and his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, the outcome of this earlier effective date claim rests with evidence that is already in the claims folder. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Thus, no reasonable possibility exists that additional assistance would aid in substantiating the Veteran's claim herein. In August 2012, the Board remanded this matter for the RO to obtain pertinent records from the Social Security Administration (SSA). The RO subsequently obtained the Veteran's SSA records, as well as updated treatment records from the VA medical center in Shreveport, Louisiana. Accordingly, the RO, acting through the Appeals Management Center, has complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473. II. Legal Criteria A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2013). A "claim" is defined broadly to include 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) (2013); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155(a) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, 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); 38 C.F.R. § 3.400(b) (2) (i). Additionally, 38 U.S.C.A. § 5110(g) allows for retroactive payments for up to one year prior to the date of claim for an award of compensation pursuant to any Act or administrative issue. The evidence must show that the claimant met all eligibility criteria for the liberalized benefit 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. 38 C.F.R. § 3.114(a) (2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Factual Background and Analysis The Veteran served on active duty from May 1968 to January 1978. The evidence of record indicates that he was exposed to herbicide agents while serving in Korea from December 1968 to December 1969. Post service treatment records reflect diagnoses of coronary artery disease beginning in August 1987. On June 29, 2001, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for coronary artery disease. In November 2011, the RO issued a rating decision which granted service connection at a 100 percent initial disability evaluation for coronary artery disease, effective from August 31, 2010. The RO's rating decision indicated that the effective date assigned was based upon the effective date of the regulation that added ischemic heart disease, including coronary artery disease, to the list of diseases for which the VA Secretary has determined that there exists an etiological relationship to herbicides exposure (and are, thus, subject to presumptive service connection on the basis of such exposure), which is August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). The Veteran is seeking an effective date prior to August 31, 2010, for the award of service connection for coronary artery disease. In his May 2013 Brief on Appeal, the Veteran's representative argued that service connection should be granted back to at least March 22, 2010, the day on which he submitted a private medical opinion linking the Veteran's coronary artery disease to his inservice Agent Orange exposure. As such, the Veteran's representative argues that service connection is warranted on this date on a direct basis, separate and apart from the presumption based upon herbicide exposure. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Based upon a longitudinal review of the record, the Board concludes that an effective date of May 7, 2009, but no earlier, is warranted for the award of service connection for coronary artery disease. A May 7, 2009 VA treatment report noted the physician's opinion that the Veteran had severe congestive heart failure due to his coronary artery disease. The VA physician then opined that this condition was "more likely than not a result of agent orange exposure." Prior to May 7, 2009, there was no competent evidence linking the Veteran's coronary artery disease to his military service, including his inservice exposure to herbicide agents. Thus, the Veteran first met the eligibility requirements, except for the filing of a claim, for the award of service connection for coronary artery disease on May 7, 2009. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the effective date 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). A Nehmer class member, however, is specifically defined as a "Vietnam veteran who has a covered herbicide disease." See 38 C.F.R. § 3.816(b)(i). The Veteran in this case, however, was exposed to herbicide agents while stationed in Korea. He has not been shown to have had any service in the Republic of Vietnam. Accordingly, the Board concludes the Veteran is not a "Nehmer class member" as defined in the law. The Veteran filed his claim seeking service connection for coronary artery disease on July 29, 2001. The Veteran first met the eligibility requirements, except for the filing of a claim, for the award of service connection for coronary artery disease on May 7, 2009. Accordingly, May 7, 2009, which is the later of the two dates, is the appropriate effective date under 38 C.F.R. § 3.816(c)(2). See 38 C.F.R. § 3.816(c)(2). ORDER An effective date of May 7, 2009, but not earlier, for the award of service connection for coronary artery disease is granted. REMAND The Veteran is seeking entitlement to TDIU benefits prior to August 31, 2010. Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). TDIU benefits are warranted when a Veteran's service-connected disability or disabilities result in impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. In determining whether a Veteran is entitled to TDIU benefits, consideration may be given to a Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Board's decision above has granted an earlier effective date of May 7, 2009, for the award of service connection for coronary artery disease. This represents a material change to the facts relating to the issue of entitlement to TDIU benefits. See 38 C.F.R. § 19.31 (2010); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together). Accordingly, remand is required for RO consideration of the issue of entitlement to TDIU benefits, including consideration of the Board decision herein. Accordingly, the case is REMANDED for the following action: After effectuating the Board's decision above, readjudicate the issue of entitlement to TDIU benefits. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs