Citation Nr: 1341010 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-09 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an effective date earlier than June 3, 2010 for the grant of service connection for coronary artery disease with history of myocardial infarction and coronary artery bypass graft (heart disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to October 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of November 2010 of the White River Junction, Vermont, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a heart disability and established an effective date of June 3, 2010. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. The Veteran first sought service connection for a heart disability in a claim received on June 3, 2010. 2. There is no evidence of a formal claim, informal claim, or written intent to file a claim for a heart disability prior to June 3, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than June 3, 2010 for the grant of service connection for coronary artery disease with history of myocardial infarction and coronary artery bypass graft have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.156, 3.159, 3.307, 3.400, 3.816 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The appeal arises from the Veteran's disagreement with the initial effective date assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). A VA examination was conducted in October 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This examination contains sufficient information to rate the Veteran under the applicable Diagnostic Code, and was the basis for the assignment of the 100 percent rating for his heart disability. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to an Earlier Effective Date 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. For VA compensation purposes, a "claim" is defined as "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 is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran filed a claim for service connection for a heart disability that was received by the RO on June 3, 2010. In a separate June 2010 letter, the Veteran stated that he was believed that many of his health problems were related to his in-service herbicide exposure. He added that "this is the first time I have known what to [do] and how to apply for help." The Veteran also submitted news articles regarding VA's addition of ischemic heart disease to the list of disabilities presumptively related to herbicide exposure. In November 2010, the RO granted the Veteran's claim for service connection for a heart disability; the RO assigned an effective date of June 3, 2010, the date of receipt of the Veteran's claim. The Veteran does not contend that he filed a claim for service connection for a heart disability prior to June 2010. Instead, since the RO's initial grant, the Veteran has consistently argued that his effective date should be extended back to 1996, the date his disability arose. In making this contention, the Veteran has highlighted information regarding effective dates that he was provided in conjunction with his initial grant. The Veteran contends that this information supports assigning an effective date at the time his treatment began. The Veteran reiterated these contentions in his March 2011 substantive appeal and in his March 2012 hearing. Medical records do show that in December 1996, the Veteran underwent a quadruple bypass at a private medical facility; he was also diagnosed as suffering from coronary artery disease at that time. The Veteran is correct in his contention that his disability began in 1996. However, the regulation regarding effective dates states that the effective date assigned is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (emphasis added). As the Veteran did not file his claim until 2010, some 14 years after the entitlement arose, the Board is legally prevented from assigning an effective date earlier than the date of his claim. In cases involving presumptive service connection due to herbicide exposure, however, there is an exception to the effective date provisions. VA has issued 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 Nehmer case. 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I), Nehmer v. United States Veterans Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Admin., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." 38 C.F.R. § 3.816. Here, as the Veteran served in the country of Vietnam during the Vietnam War era, he is a "Vietnam veteran" as defined in the regulations. 38 C.F.R. § 3.307(a)(6). Pursuant to 38 C.F.R. § 3.816(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 coronary artery disease. Id. The Veteran is thus 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. 38 C.F.R. § 3.816(c)(1)-(3). 38 C.F.R. § 3.816(c)(1) provides for an earlier effective date for diseases previously denied by VA between September 25, 1985, and May 3, 1989. Under 38 C.F.R. § 3.816(c)(2), if the class member's claim was received between May 3, 1989 and the effective date of the liberalizing law, 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, except as provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation if the claimant's application or 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 VA issued a decision on the claim between May 3, 1989 and the effective date of the statute or regulation 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. 38 C.F.R. § 3.816(c)(3) provides that if the class member's claim was received within one year of his or her 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. The Veteran here has already been granted an earlier effective date that conforms with the Nehmer decision pursuant to 38 C.F.R. § 3.816(c)(2). Though the regulatory change adding ischemic heart disease to the list of presumptive diseases was not added until August 31, 2010, the Veteran has been granted an effective date of June 3, 2010. This is the later of the dates between when the entitlement arose and when he filed his claim, as directed by the regulation. Neither 38 C.F.R. § 3.816(c)(1) nor (c)(3) are applicable to the Veteran, as he did not file his claim within a year of his separation from service, and he did not have an earlier claim that was denied. The preponderance of the evidence is against the claim for an earlier effective date for service connection for a heart disability; there is no doubt to be resolved; and an earlier effective date for a heart disability is not warranted. ORDER Entitlement to an effective date earlier than June 3, 2010 for the grant of service connection for coronary artery disease with history of myocardial infarction and coronary artery bypass graft is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs