Citation Nr: 1529584 Decision Date: 07/10/15 Archive Date: 07/16/15 DOCKET NO. 13-01 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than February 20, 2002, for service connection for coronary artery disease associated with herbicide exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1968. His service included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which granted entitlement to service connection for coronary artery disease, secondary to herbicide exposure, effective February 20 2002. The Veteran appeared and testified at a personal hearing in May 2015 before the undersigned Veterans Law Judge. A transcript of the hearing is contained in the record. FINDINGS OF FACT 1. VA received formal claim for Aid and Attendance and VA pension benefits due to permanent disability, including disability due to coronary artery disease, on December 3, 2003. 2. The award of service connection for coronary artery disease was granted in a February 2011 rating decision pursuant to the presumptive herbicide exposure laws and regulations effective from February 20, 2002, the date of receipt of private medical records diagnosing congestive heart failure. CONCLUSION OF LAW The criteria for an earlier effective date earlier than February 20, 2002, for the award of service connection for coronary artery disease, are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2014); 38 C.F.R. § 3.816 (as revised by 78 Fed. Reg. 54,766 (Sept. 6, 2013)). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, additional notice is not required, and any defect in the notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 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. The Veteran has not identified any evidence pertinent to the issue of entitlement to an earlier effective date for the grant of service connection for ischemic heart disease/ coronary artery disease that remains outstanding. Thus, VA's duty to assist is met. Also, VA notified the Veteran in a September 2010 letter that the RO undertook a review of his claim for coronary artery disease (also claimed as congestive heart failure) under the new presumptive provisions (Nehmer v. U.S. Veterans Admin., 284 F. 3d 1158 (9th Cir. 2002).), which requires the payment of retroactive benefits to certain Nehmer class members (that is, Ischemic Heart Disease and certain other diseases are presumptively associated with exposure to certain herbicide agents used in Vietnam). The Veteran was notified that entitlement to potential retroactive benefits applies to all cases wherein VA received a claim for benefits, or wherein VA denied benefits, after September 25, 1985, and before the date VA published the final regulation adding the new disabilities to the list of diseases presumptively associated with herbicide exposure in Vietnam. The Veteran was notified that his case qualified for this special review based on a prior VA benefits claim for ischemic heart disease. In this same letter, the Veteran was that his case qualified for review based on a prior VA benefits claim for coronary artery disease. Laws and Regulations Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)-(b)(1) ; 38 C.F.R. § 3.400(b)(2). A claim 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. An 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Veteran's claim for service connection for ischemic heart disease was granted pursuant a liberalizing law. Effective August 31, 2010, VA added ischemic heart disease to the list of presumptive diseases associated with herbicide exposure. 75 Fed. Reg. 53,216 (Aug. 31, 2010); 38 C.F.R. § 3.309(e). It was noted in the Federal Register that VA may pay benefits for periods prior to the effective date in certain circumstances which are set forth in detail in 38 C.F.R. § 3.816(c) and (d), which implement a stipulation and various court orders in the Nehmer class action litigation. 75 Fed. Reg. 53,216 (Aug. 31, 2010). The Board notes that 38 C.F.R. § 3.816 was revised to include ischemic heart disease as a covered herbicide disease. 78 Fed. Reg. 54,766 (Sept. 6, 2013). Under 38 C.F.R. § 3.816(c) , the effective date of an award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before 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, 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 otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) 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 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. (3) 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. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. Factual Background and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran seeks an earlier effective date for the award of service connection for coronary artery disease. During his May 2015 Board hearing, the Veteran testified that his coronary artery disease should have an effective date back to his separation from service. He stated that although he was not diagnosed with heart disease until 2001, he had the symptoms of heart disease starting in service. He testified that he was hospitalized during service with malaise, fever, sweats and aches. He stated that these symptoms continued on and off over the years and that he was then diagnosed with heart disease in 2001. He also reported he filed a claim for service connection for malaria within a year of his discharge from service. He indicated that this claim for malaria was for the symptoms that were later diagnosed as heart disease. Therefore, he seeks an effective date for coronary artery disease dating from "April 1, 1968." It is noted in the February 2011 rating decision which awarded service connection for coronary artery disease secondary to herbicide exposure, that the effective date of February 20, 2002, was based on "the earliest date evidence was printed inferring a claim for coronary artery disease (CHF)." On August 31, 2001, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). As a part of this claim, he submitted VA treatment records. The VA treatment records included a March 24, 1997, record where one impression of the Veteran's symptoms included coronary artery disease. The Veteran complained of malaise, congestion and low-grade fevers for the past two weeks. An additional February 26, 2001, treatment record noted the Veteran's statement that he was recently diagnosed with heart failure. The evidence submitted by the Veteran did not include a statement or other submission indicating an intent to file a claim for a heart disorder. VBMS indicates that on December 17, 2001, in response to the Veteran's claim for service connection for PTSD, the RO obtained VA treatment records. The records obtained included a January 24, 1996 record which noted the Veteran complained of upper respiratory problems. The record appears to note that he denied shortness of breath, chest pain, lower extremity edema, cough, dizziness, etc. However, the diagnostic impression included "ASHD" or arteriosclerotic heart disease. Next, the virtual record contains private treatment records from January 5, 2001, which diagnosed acute congestive heart failure secondary to hypertension. This record is noted in VBMS to have been received on February 2, 2002. However, there is no receipt date stamped on the private treatment record. An additional record (a consent to release medical records) is noted in VBMS to have been received on February 2, 2002; however, the form is stamped as having been received February 20, 2002. As February 20, 2002 is the date the RO provided as the effective date for the grant of entitlement to service connection for coronary artery disease, and the January 2001 treatment record included a diagnosis of congestive heart failure, the Board assumes that this is the record used as the basis of the coronary artery disease effective date. Although the February 2011 rating decision noted that the date was chosen based on when "evidence was printed inferring a claim," there is no print date or "date received" stamp on the 2001 record. The date chosen appears to have been taken from the consent to release medical records form, which was stamped as received on February 20, 2002 (and both the consent form and medical records were incorrectly noted by VBMS to have been received on February 2, 2002). In response to a claim for service connection for bronchitis, private treatment records were received on July 14, 2003. These records included information regarding the Veteran's cardiomegaly and high blood pressure. On November 18, 2003, a VA physician filled out and signed an aid and attendance examination worksheet for the Veteran. The worksheet noted that he had coronary artery disease, and that this was one diagnosis which limited his functional abilities. The Veteran indicated on the Aid and Attendance form that he was seeking VA pension compensation as a result as a permanently disabled Veteran. A handwritten note on the back notes "CAD dx" (coronary artery disease diagnosis). The examination worksheet was received by VA on December 3, 2003. Notably, it was incorrectly listed in VBMS as having been received on December 3, 2004. In a January 2004 rating decision, the Veteran was granted entitlement to pension, based partially on his coronary artery disease diagnosis. In September 2010, the Veteran was sent Nehmer notification, as he was identified as possibly having a claim associated with the new changes in presumptive service connection based on herbicide exposure. In the February 2011 rating decision on appeal noted the grant of pension benefits due to coronary artery disease with cardiomegaly and congestive heart failure, and the December 3, 2003 Aid and Attendance worksheet diagnosing coronary artery disease. The RO assigned an effective date of February 20, 2002 because it was the "earliest date evidence was printed inferring a claim for coronary artery disease (CHF)." Initially, the Board notes that the liberalizing law which added ischemic heart disease as a presumptive disease associated with herbicide exposure specifically provided parameters for effective dates under 38 C.F.R. § 3.816(c). A review of the virtual record shows that the Veteran was not denied entitlement to compensation for coronary artery disease (or a similar disability that could be construed as coronary artery disease) between September 25, 1985 and May 3, 1989. In a December 1984 rating decision, the Veteran was denied service connection for a high fever, previously considered as malaria. In a July 1996 rating decision, he was denied entitlement to service connection for PTSD. No rating or administrative decisions denying compensation exist between December 1984 and July 1996. The Veteran did not have a disability claim related to his heart disease pending before VA on May 3, 1989. Additionally, VA had not denied a claim for heart disease (or that could be construed as coronary artery disease) between May 3, 1989 and August 31, 2010 (the date the final rule was published in the Federal Registrar amending 38 C.F.R. § 3.309(e) to include ischemic heart disease). Although the Veteran has stated that the symptoms he was attempting to receive service connection for just following discharge from service were later diagnosed as symptoms associated with his heart disease, there was nothing in either his statements or the medical evidence of record at the time from which VA could reasonably construe a claim for heart disease. In March 1971, VA denied claims for malaria, headaches, chronic indigestion, constipation, boils and a rash. Additional claims for malaria, fever, viremia, PTSD, and bronchitis were denied by VA. The RO found that the VA received a claim for disability compensation for coronary artery disease (or a similar heart disability) between May 3, 1989 and August 31, 2010. As such, 38 C.F.R. § 3.816(c)(2) notes that the effective date assigned must be the later of the date the claim was received by VA or the date the disability arose. Thus, this effective date claim analysis will focus on whether the VA received a claim for disability compensation between May 3, 1989 and August 31, 2010. A claim for coronary artery disease will be considered if the Veteran provided "application and other supporting statements and submissions which may reasonably be viewed, under the standards of ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability." 38 C.F.R. § 3.186(c)(2)(i). The standards which ordinarily govern compensation claims include that a claim by a veteran for pension may be considered a claim for compensation. 38 C.F.R. § 3.151. Generally, the effective date of an original service connection claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). The Board notes that the date of VA treatment records is accepted as the date of receipt of a claim only in claims for increased ratings or to reopen. 38 C.F.R. § 3.157(b)(1). For claims that have not yet been service connected, informal claims are "any communication or action, indicating an intent to apply for a benefit," and the informal claim must identify the benefit sought. 38 C.F.R. § 3.155. After receipt of an informal claim, if a formal claim is received within one year from the date that an application form is forwarded to the claimant for execution, then the claim for benefits will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. As noted above, the RO based the February 20, 2002 effective date on the receipt of records diagnosing heart disease. Notably, the consent to release records form which received the date stamp of February 20, 2002, contained a claim for PTSD. There is no statement from the Veteran indicating that the submission of the January 5, 2001 record was a claim of entitlement to compensation for a heart disability. As such, even though the RO accepted the submission of the 2001 record as an informal claim, there is no statement of intent to file a heart disability claim from the Veteran associated with this medical record. The earliest diagnosis of a heart disorder is in the January 1996 VA treatment record diagnosing arteriosclerotic heart disease. Again, however, this treatment record, and other VA and private treatment records from prior to February 20, 2002, were not accompanied by a statement "indicating an intent to apply" for VA benefits related to a heart disability, and in fact, it appears to have been submitted in regard to another pending claim. See 38 C.F.R. § 3.155. As such, the submission or obtaining of these VA and private treatment records cannot constitute an informal claim under 38 C.F.R. § 3.155. As the Veteran was not previously denied a claim regarding his heart disorder, the receipt of these records cannot be considered a claim to reopen under 38 C.F.R. § 3.157. The earliest that the Veteran sought VA benefits related to his heart disorder was in the submission of the December 3, 2003 claim for VA pension and Aid and Attendance. In January 2004, the RO granted the Veteran nonservice-connected pension claim because he was shown to be "disabled due to his disabilities of coronary artery disease with cardiomegaly and congestive heart failure and osteoarthritis." As a claim for pension benefits may also be considered a claim for compensation under 38 C.F.R. § 3.151, this December 3, 2003 pension claim may be considered the Veteran's first claim for compensation benefits based on his coronary artery disease. However, this is prior to the February 20, 2002, effective date already assigned by the RO. Accordingly, the claim for an earlier effective date for the grant of service connection for coronary artery disease is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than February 20, 2002, for the award of service connection for coronary artery disease associated with herbicide exposure, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs