Citation Nr: 1531995 Decision Date: 07/28/15 Archive Date: 08/05/15 DOCKET NO. 11-15 148A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than February 24, 2010 for service connection for atherosclerotic hypertensive heart disease, status post myocardial infarction (MI) and stent. 2. Entitlement to an initial rating in excess of 30 percent for atherosclerotic hypertensive heart disease, status post MI and stent, prior to August 23, 2012 and in excess of a 60 percent rating thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for atherosclerotic hypertensive heart disease, status post MI and stent, and assigned a 30 percent rating effective February 24, 2010. In an August 2012 rating decision, the RO granted a 60 percent rating for this disability effective August 23, 2012. The United States Court of Appeals for Veterans Claims (the Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to a higher rating remains in appellate status. In an October 2012 statement, the Veteran asserted that there is clear and unmistakable error (CUE) in the November 2010 and August 2012 rating actions with respect to the effective date and initial ratings assigned for his heart disability. Because these rating decisions have been appealed, there is no final adverse RO or Board decision that can be subject to a CUE attack. Thus, as a matter of law, the Veteran cannot assert a claim of CUE. Link v. West, 12 Vet. App. 39, 45(1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). FINDINGS OF FACT 1. The Veteran experienced an acute myocardial infarction in January 1999. 2. The Veteran was not denied compensation for heart disease between September 25, 1985 and May 3, 1989; he did not have a claim pending for compensation before VA on May 3, 1989. 3. VA received no communication from the Veteran that constitutes a formal claim or may be construed as an informal claim for service connection for a heart disability, to include atherosclerotic hypertensive heart disease, status post MI and stent, prior to February 24, 2010 when the initial claim of service connection for a heart disability was received. 4. Prior to January 11, 2012, the Veteran's atherosclerotic hypertensive heart disease, status post MI and stent, was not productive of acute congestive heart failure in the past year, workload greater than 3 metabolic equivalents (METs), but not greater than 5 METs, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 5. From January 11, 2012, the Veteran's atherosclerotic hypertensive heart disease, status post MI and stent, was not productive of chronic congestive heart failure, workload of 3 METs or less or LVEF of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 24, 2010, for the grant of service connection for atherosclerotic hypertensive heart disease, status post MI and stent have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.400, 3.816 (2014). 2. Prior to January 11, 2012, the criteria for a rating in excess of 30 percent for atherosclerotic hypertensive heart disease, status post MI and stent, were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7006-7005 (2014). 3. From January 11, 2012, the criteria for a rating in excess of 60 percent for atherosclerotic hypertensive heart disease, status post MI and stent, were not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). The appeal arises from a disagreement with the initially assigned disability rating and effective date after service connection was granted. Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated. VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). Here, the Veteran's VA records and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations in June 2010 and August 2012 which, collectively, are adequate as the examiners conducted clinical evaluations, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). II. Earlier Effective Date In a November 2010 rating decision, the RO granted service connection for atherosclerotic hypertensive heart disease, status post MI and stent, associated with herbicide exposure, on a presumptive basis. The effective date of the award was set as February 24, 2010, the date of receipt of the claim. The Veteran contends that an earlier effective date is warranted. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a 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(a); 38 C.F.R. § 3.400. If a claim for disability compensation was received within one year after separation from service, the effective date will be the day following separation from service or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. 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 is defined as a Vietnam veteran who has a "covered herbicide disease." See 38 C.F.R. § 3.816. Here, the Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulations. See 38 C.F.R. § 3.307(a)(6). According 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. 53202 (Aug. 31, 2010). Although ischemic heart disease is not listed in that section, the final rule made clear that the effective dates of awards of ischemic heart disease under the 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions. See 75 Fed. Reg. at 53203. The Veteran is a "Nehmer class member" within the meaning of 38 C.F.R. § 3.816(b)(1) and has a "covered herbicide disease" [i.e., ischemic heart disease] within the meaning of 38 C.F.R. § 3.816(b)(2). As applicable to this case, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the 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. 38 C.F.R. § 3.816(c)(1). (2) Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim 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, which pertains to claims filed within one year from the date of separation from service. See 38 C.F.R. § 3.816(c)(2). 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 submission 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. Id. 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. See 38 C.F.R. § 3.816(c)(3). Thus, under the Nehmer effective date provisions, the Board must analyze whether VA denied compensation for ischemic heart disease or whether a claim for ischemic heart disease was filed prior to the February 24, 2010 claim, with consideration of the effective date of the liberalizing law of August 30, 2010. In the instant case, the Veteran was not denied compensation for a heart disease between September 25, 1985 and May 3, 1989, nor was there a denial of service connection for a disability that can be reasonably viewed as a denial of ischemic heart disease, between September 25, 1985 and May 3, 1989. For this reason, paragraph (c)(1) is not applicable to this discussion. Also, because the Veteran's claim was received more than one year after his separation from military service in June 1969, paragraph (c)(3) is not applicable to this discussion. With regard to paragraph (c)(2), the Veteran did not have a claim for compensation for a heart disability pending before VA on May 3, 1989. His original claim for compensation for a heart disability was received, as noted, on February 24, 2010. The record also reflects that there was no prior claim expressly relating to the term ischemic heart disease, nor one that could reasonably be construed as a claim for a heart disability, which was pending before VA on May 3, 1989, or that was received between May 3, 1989, and February 24, 2010. Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim was received by VA between May 3, 1989, 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. See 38 C.F.R. § 3.816(c)(2). In an October 2012 statement, the Veteran asserted that he had a history of cardiac problems since service, and that medical records in the file (including his service treatment records, records from Seton Medical Center dated in 1999, VA examination reports, and VA outpatient treatment records dated between September 2005 and October 2010) corroborate this. To the extent that the Veteran essentially asserts that any of these medical records represented an earlier claim of service connection for a heart disability, this argument is without merit. While these medical records may have shown that the Veteran's heart problems existed before he was granted service connection for atherosclerotic hypertensive heart disease, status post MI and stent, the mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). And, VA medical records cannot be accepted as informal claims for disabilities where service connection has not been previously established. 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An "application" 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). With regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). However, 38 C.F.R. § 3.157 only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service connected rating where service connection has already been established). Other than the Veteran's medical treatment records, there is nothing to reflect a claim or an informal claim for a heart disability prior to February 24, 2010. While 38 C.F.R. § 3.157 allows a report of examination or hospitalization to be construed as an informal claim for an increased disability evaluation or a request to reopen certain types of previously denied claims, in the instant case, the Veteran's February 24, 2010 claim for a heart disability was an original claim for service connection, not a claim for a higher disability rating for an already service-connected disability or an attempt to reopen a previously denied service connection claim. Thus, prior to February 24, 2010, there was no communication received from the Veteran between May 1969 and February 2010 wherein he requested a determination of entitlement to service connection for a heart disability, to include atherosclerotic hypertensive heart disease, status post MI and stent, or evidencing a belief in entitlement to such a benefit. For all the above reasons, the Board finds that entitlement to an effective date earlier than February 24, 2010 for a grant of service connection for atherosclerotic hypertensive heart disease, status post MI and stent is not warranted. There is no evidence of a formal claim, informal claim, or written intent to file a claim for heart disease prior to February 24, 2010. While the Veteran contends he is entitled to an earlier effective date, given that the effective date of the award can be no earlier than the date of claim, his contentions are without merit. The preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(a). III. Increased Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126(1999). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, staged ratings are warranted. In the November 2010 rating decision that awarded service connection for atherosclerotic hypertensive heart disease, status post MI and stent, the Veteran was assigned an initial 30 percent rating under Diagnostic Code 7006-7005, effective February 24, 2010. In an August 2012 rating decision, he was granted a 60 percent rating effective August 23, 2012. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (CAD). Diagnostic Code 7006 provides ratings for MI and is identical to Diagnostic Code 7005 with the exception of allowing a 100 percent disability rating during and for three months following a myocardial infarction, documented by laboratory tests. In this case, the Veteran suffered his MI well before the date of service connection was established. Ischemic heart disease resulting in workload of greater than 7 METs (metabolic equivalent) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Ischemic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. 38 C.F.R. § 4.104, DC 7005. Ischemic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent, is rated 60 percent disabling. Id. Ischemic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent, is rated 100 percent disabling. Id. For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. A VA examination in June 2010, the Veteran's history of an MI in 1991 with stent placement was noted. The Veteran reported that he used to walk 1/4 mile daily, but quit due to a lack of time and the hot weather. The Veteran was self-employed in the janitorial field. He indicated that he directs employees and "sometimes he helps." The examiner noted that the Veteran's METs were greater than 8. The examiner indicated that there was no effect on the Veteran's usual daily activities, or on occupation as the Veteran is the boss and directs his employees. On examination, the Veteran had regular rhythm and rate; there was no gallop or enlarged heart. There was no evidence of congestive heart failure. The accompanying echocardiogram showed the left ventricle was normal in size, but there was moderate concentric left ventricular hypertrophy with an ejection fraction of 60- 65 percent. The diagnosis was atherosclerotic hypertensive heart disease, status post acute MI, status post deployment of one stent. At a VA examination on August 23, 2012 the Veteran's exercise stress testing needed to be stopped due to ischemic changes; prior to that point 4.4 METs was shown. The examiner indicated that the date of this stress test was January 11, 2012. The prior echocardiogram was also reviewed. The examiner noted that the Veteran was unable to perform work duties that required more than light physical exertion. There was no congestive heart failure. With regard to the first time period, when the Veteran was assigned a 30 percent rating from February 24, 2010 to August 23, 2012, in order for a higher rating of 60 percent to be warranted, the rating criteria requires that the CAD/arteriosclerotic heart disease result in more than one episode of acute congestive heart failure in the past year. The Veteran did not have any such episodes. Alternatively, on testing, a workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope must be shown. At the June 2010 VA examination, the Veteran had METs greater than 5. In addition, his ejection fraction (LVEF) was higher than 30 to 50 percent. The August 2012 VA examination report shows, however, that a stress test on January 11, 2012, yielded results showing 4.4 METs. Thus, the criteria for a rating of 60 percent is warranted from this date as the Veteran's heart disability manifested with a workload of greater than 3 METs but not greater than 5 METs. Prior to January 11, 2012, the criteria for a rating in excess of 30 percent were not met. With regard to the period commencing January 11, 2012, in order for a higher rating of 100 percent to be warranted, the rating criteria requires chronic congestive heart failure, which was not present, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent. Neither of those criteria was met, either, as his METs were too high as was his LVEF percentage. Thus as the Veteran did not meet any of these criteria, a higher total rating is not warranted. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 30 percent prior to January 11, 2012, and a rating in excess of 60 percent from January 11, 2012. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's atherosclerotic hypertensive heart disease, status post MI and stent manifested with symptoms of dyspnea, fatigue, angina and dizziness with exertion with estimated METs of 8 prior to January 2012, and METs of greater than 3 but less than 5 after January 2012. This disability also results in an inability to perform work duties that required more than light physical exertion. There have not been any episodes of congestive heart failure. The symptoms associated with the Veteran's service-connected heart disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic codes, as cited above, and the Board finds that the rating criteria reasonably describe his disability. In addition, there have not been frequent hospitalizations or marked interference with employment as the Veteran remains self-employed and can perform light exertion. Therefore, referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447(2009). The Veteran is currently self-employed as an owner of a janitorial business that employs staff. As there is no evidence of unemployability in this case due to service-connected atherosclerotic hypertensive heart disease, status post MI and stent, the question of entitlement to TDIU is not raised. ORDER Entitlement to an effective date earlier than February 24, 2010 for service connection for atherosclerotic hypertensive heart disease, status post MI and stent is denied. Entitlement to an initial rating in excess of 30 percent for atherosclerotic hypertensive heart disease, status post MI and stent, prior to January 11, 2012 and in excess of a 60 percent rating thereafter, is denied. ____________________________________________ D. Johnson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs