Citation Nr: 1549366 Decision Date: 11/23/15 Archive Date: 11/25/15 DOCKET NO. 14-17 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date prior to March 31, 1998 for the grant of service connection for coronary artery disease with myocardial infarction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (RO). Jurisdiction over the claims file rests with the RO in Lincoln, Nebraska. FINDINGS OF FACT 1. The Veteran's heart disease was first diagnosed in June 1996 during a VA hospitalization. 2. An informal claim for entitlement to service connection for a heart disability was received by the RO on March 31, 1998. 3. There is no evidence of a formal or informal claim for entitlement to service connection for a heart disability prior to March 31, 1998. 4. The date that entitlement to service connection for a heart disability arose was June 13, 1996. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 31, 1998 for the grant of service connection for coronary artery disease have not been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.156, 3.157, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's claim for entitlement to an earlier effective date, service connection has been granted and a disability rating and effective date have been assigned. Thus, notice 38 U.S.C.A. § 5103(a) is not required. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. VA has complied with all duty to notify provisions. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. However, 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, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. In this case, the Veteran has not identified any pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met in regards to the effective date claim. Service connection for coronary artery disease with myocardial infarction was granted in a December 2002 rating decision, effective December 19, 2000, the date of receipt of the claim for entitlement to service connection for a heart disability. In March 2014, the RO independently reviewed the effective date assigned for the Veteran's heart disability, and concluded that an effective date of March 31, 1998 was appropriate. The Veteran claims entitlement to an effective date prior to March 31, 1998 for the grant of service connection for coronary artery disease with myocardial infarction. During his June 2015 hearing before the Board, he explained that he filed a claim for service connection for a heart disability at the time that he received treatment for his myocardial infarction, in June 1996. He stated that he completed a claim form while at the hospital in June 1996, that he handed the form to his representative to file with VA, and that he is not sure what happened to the claim after that point. He testified that he did not file another claim for entitlement to service connection for any disability with VA until March 1998, and that he did not file another claim for entitlement to service connection for a heart disability until 2000. The effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the effective date is 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. Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a). A "claim" is defined in the VA regulations 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) (2015). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefit sought. See 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). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b). However, section 3.157 only applies to those claims for which service connection has already been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002). Thus, VA medical records cannot be accepted as informal claims for disabilities where service connection has not yet been established. With respect to earlier effective date claims for diseases presumed to be caused by herbicide exposure, VA has issued special regulations based upon a liberalizing law. Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). In general, if a claim is reviewed within one year from the effective date of a liberalizing law or VA issue, benefits may be authorized from the effective date of a liberalizing law or VA issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p) (2015). Although the effective date of the liberalizing law at issue is August 31, 2010, effective dates of certain awards of service connection are governed pursuant to the orders of a United States district court in the class-action case arising from Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). 38 C.F.R. § 3.816. The covered diseases are listed in 38 C.F.R. § 3.816(b)(2). 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 provisions of 38 C.F.R. § 3.309(e) are governed by the Nehmer provisions. See 75 Fed. Reg. at 53203. 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. Pursuant to the Nehmer May 1991 Stipulation and Order, awards of disability compensation may, in some circumstances, be made effective retroactive to the date of an earlier claim that was filed or denied before such regulations were issued. See 66 Fed. Reg. 23166, 23167 (May 8, 2001). Training Letter 10-04 and its attached Training Guide show that footnote 1 of the Nehmer Stipulation and Order says that prior VA decisions are deemed to have denied service connection for any condition that paragraph 46.02 of the M21-1 (in 1991) required to be coded in the rating decision. Training Letter 10-04 (February 10, 2011). As the Training Letter and its attached Training Guide explain, a Nehmer class member's date of claim for a covered herbicide disease should be the date a claim that any unrelated disease was received by VA, if evidence of the covered herbicide disease is submitted in relation to the unrelated claim. Id. This Training Letter and its attached Training Guide also shows that an initial claim may lack specific details, which were clarified by later submissions. Id. These instructions do not obviate the requirement that the effective date be the later of the date a claim was received by VA or the date the disability arose. The Veteran is a Nehmer class member, as he is a Vietnam Veteran with a covered herbicide disease, i.e. coronary artery disease. The electronic claims file reflects that the Veteran was first diagnosed with coronary artery disease after seeking emergency treatment at a VA hospital for a myocardial infarction on June 13, 1996. The medical records from that time show that a cardiac cathertization revealed a 60 percent lesion of the mid-right coronary artery. Cardiac risk factors were noted to include smoking, elevated cholesterol, and type A personality. At discharge, the Veteran was prescribed beta blocker therapy, as well as an ace inhibitor. The discharge diagnoses included inferior myocardial infarction and history of hypercholesterolemia. A report of hospitalization was associated with the evidence of record on June 19, 1996. Thereafter, on March 31, 1998, VA received an informal claim from the Veteran's representative requesting entitlement to service connection for a left eye disability. On December 19, 2000, VA received a claim from the Veteran's representative on the Veteran's behalf for entitlement to service connection for "an unspecified heart condition." After a thorough review of the evidence of record, the Board concludes that an effective date prior to March 31, 1998 is not warranted for the Veteran's service-connected coronary artery disease. In this case, the effective date for the award of coronary artery disease was initially set as December 19, 2000, the date that VA received an informal claim for entitlement to service connection for a heart disability. The effective date was later changed to March 31, 1998 based on the fact that a claim for entitlement to service connection for a left eye disability had been filed on this date and medical records submitted in association with this claim include records of the Veteran's June 1996 myocardial infarction and subsequent diagnosis of coronary artery disease. Training Letter 10-04 and its attached Training Guide explain that a Nehmer class member's date of claim for a covered herbicide disease should be the date a claim that any unrelated disease was received by VA if evidence of the covered herbicide disease is submitted in relation to the unrelated claim. The claim received on March 31, 1998 is the first claim associated with the Veteran's claims file after his initial diagnosis of myocardial infarction with coronary artery disease in June 1996. As noted, the effective date is the later of the date of claim or the date the disability arose. In this case, in compliance with Training Letter 10-04 and its attached Training Guide, the Veteran's date of claim is March 31, 1998. The evidence of record shows that the date the disability arose is June 13, 1996. This is the date that a myocardial infarction is shown to have occurred by a June 13, 1996 VA hospital record. This June 1996 evidence of a myocardial infarction is the first evidence of record of coronary artery disease. Therefore, the date that the Veteran's heart disability arose is June 13, 1996. However, an effective date of March 31, 1998 is warranted as the regulation provides that the effective date is the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Other than the Veteran's treatment for a myocardial infarction in June 1996, there is nothing to reflect a claim or an informal claim prior to March 31, 1998. 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 March 31, 1998 claim is an initial 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, the June 1996 VA reports of hospitalization cannot constitute an informal claim in this case. The Board acknowledges the Veteran's contentions that he filled out a form while in the hospital in June 1996 with the intent that the form be submitted as a claim for entitlement to service connection for a heart disability. However, there is no evidence that any such claim, statement, correspondence, or form was submitted to VA. 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). In the absence of any evidence of a request for determination of entitlement or evidence of belief of entitlement to service connection for a heart disability, in writing, prior to March 31, 1998, the date of claim in this case is March 31, 1998. Accordingly, an effective date earlier than March 31, 1998 is not warranted in this case, as the later of the date of claim (March 31, 1998) and the date that entitlement arose (June 13, 1996), is March 31, 1998. There is no evidence of a formal or informal claim for entitlement to service connection for a heart disability prior to December 19, 2000; accordingly, an earlier effective date for the grant of service connection for a heart disability is not warranted in this case. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A §5107. ORDER An effective date earlier than March 31, 1998, for the grant of service connection for coronary artery disease with myocardial infarction is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs