Citation Nr: 1613071 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 13-17 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than November 29, 2010, for the grant of service connection for ischemic heart disease associated with herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from November 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Auburn, Washington. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT The earliest date upon which VA was in constructive possession of evidence showing the Veteran's ischemic heart disease had manifested to a compensable degree is November 29, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than November 29, 2010, for the award of service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). As explained below, the pertinent facts in this case are not in dispute, and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA's duties to notify and assist under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015). See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, 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(b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). Where compensation is awarded pursuant to a liberalizing law, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or regulation. 38 U.S.C.A. § 5110(g) (West 2014); 38 C.F.R. § 3.114(a) (2015). If a claim is reviewed at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the liberalized law provided the claimant met all eligibility criteria on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. 38 C.F.R. § 3.114(a). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the 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 the 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." See 38 C.F.R. § 3.816. The Veteran in this case served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulation. 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 pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne as provided in 38 C.F.R. § 3.309(e). 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; or if the class member's claim was received within one year from the date of the class member's separation from service. See 38 C.F.R. § 3.816(c)(1)-(3). If the requirements of 38 C.F.R. § 3.816(c)(1)-(3) are not met, the effective date shall be assigned according to 38 C.F.R. § 3.400. See 38 C.F.R. § 3.816(c)(4). Certain exceptions are set forth that are not pertinent to this appeal. The Veteran initiated a claim for service connection for diabetes mellitus on November 19, 2002. A VCAA letter sent to the Veteran in April 2003 noted that he had recently filed a claim for service connected compensation based on herbicide exposure for diabetes mellitus and complications such as coronary artery disease. Service connection for diabetes mellitus was granted in an April 2003 rating decision effective November 19, 2002, the date of claim. That same month, a VCAA letter sent to the Veteran noted that service connection could be established for a disability which was caused by a service-connected condition. The letter also informed the Veteran what evidence was needed to establish service connection for his coronary artery disease as secondary to his service-connected diabetes mellitus. In July 2003, VA received private medical records from Cox Medical Centers which noted that the Veteran was admitted on February 7, 1988 and discharged on February 15, 1988 for a colon resection. Chest x-ray was negative and electrocardiogram was borderline. On February 8, 1988, the Veteran's chest was clear and he had normal sinus rhythm with no murmurs. His discharge diagnoses included arteriosclerotic heart disease. Private treatment records from Springfield Clinic and St. John's Clinic from December 1997 to January 2001 show no diagnosis of heart disease. In December 1997 and February 1999, the Veteran's heart rhythm was regular without murmur. In January 2001, the Veteran reported that one time that year, when he was hauling a deer out of the woods, he had severe crushing chest pain, which stopped when he stopped his activity. He reported that when he was in a high altitude skiing one time, he was very short of breath and had chest pain after exerting himself. The Veteran stated that he was worried that such symptoms were evidence of heart disease. The physician noted that it was probably not heart disease but obtained a stress test, which was normal, as a reassurance. Service connection for coronary artery disease was denied in a March 2004 rating decision. On November 29, 2010, the Veteran reported exertional chest pain for approximately 15 years and was again having the same symptoms. He reported that he when he walked uphill or was exposed to the cold, he developed anterior chest pain; when he rested, the pain went away after a while. He reported that his primary medical doctor did EST but he was unable to finish the test as he developed severe chest pain. EKG was within normal limits and chest x-ray showed no active pulmonary disease and no significant interval change from examination in November 2009. Problem list noted angina pectoris. The Veteran was referred for nuclear medicine stress test and prescribed nitroglycerine to be taking as needed for chest pain. The stress test, which was conducted on January 7, 2011, demonstrated that the Veteran achieved a level of 7.60 METs. One MET (metabolic equivalent) 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. The Veteran experienced chest discomfort during stress, and relieved in recovery. Stress test was stopped because of exaggerated blood pressure response of 240 systolic. VA cardiologist determined that EKG positive in lead II and since symptoms were consistent with angina, a left heart catheterization was recommended. That same day, the Veteran underwent VA examination on January 7, 2011 at which time the examiner noted that there was not a diagnosis of ischemic heart disease and instead diagnosed him as having angina pectoris. The Veteran reported that he experienced angina with activity of seven to ten METs (consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 mph)). A January 29, 2011, VA Discharge Summary indicates that the Veteran underwent diagnostic catheterization on January 26, 2011, which showed non obstructive coronary artery disease. Ejection fraction was 55 percent, and the Veteran was recommended to continue medical management for CAD and risk factor modification. Preoperative Note on January 25, 2011 indicates that the Veteran had been having exertional chest pain for at least one year and that it had gotten worse the prior three to six months. The Veteran described symptoms of shortness of breath that he first noticed with walking uphill. These symptoms were associated with substernal chest pain, no diaphoresis, and no sense of impending doom. The pain did not radiate anywhere and was not associated with breathing or food intake. The pain and shortness of breath improved when he was walking back downhill and completely gone at rest; and no such pain occurred intermittently at rest. The Veteran reported that he had had similar pains many years before when he was in his mid-thirties; his primary care physician ordered a stress test which had to be aborted because the Veteran could not tolerate it due to severe chest pain. It was also noted that he had a treadmill stress test on January 7, 2011, which showed - ST depression in inferior leads with angina and exaggerated BP response. Chest x-ray showed no findings to suggest active cardiopulmonary disease. Electrocardiogram on January 27, 2011 showed normal sinus rhythm, normal electrocardiogram and when compared with electrocardiogram of January 25, 2011, no significant change was found. In May 2011, the Veteran was informed by VA that the Secretary of VA had established that ischemic heart disease, inter alia, warranted presumptive service connection based on the association between exposure to herbicides used in the Republic of Vietnam during the Vietnam era and the subsequent development of the condition. The Veteran was informed that the records indicated that he had previously filed a claim for coronary artery disease. A special review of the Veteran's file was completed pursuant to Nehmer v. Department of Veterans Affairs, and in a May 2011 rating decision, service connection for ischemic heart disease was established as associated with herbicide exposure. A 10-percent evaluation was assigned effective November 29, 2010 although it was noted that the effective date of service connection for ischemic heart disease was January 26, 2011, the date he was diagnosed with non-obstructive coronary artery disease. In this case, the RO recognized that a claim for service connection for ischemic heart disease was raised in November 19, 2002. Effective August 31, 2010, ischemic heart disease was included as a presumptive herbicide-related disease under 38 C.F.R. § 3.309(e). Thus, in this case because the claim was received by VA between May 3, 1989 and August 31, 2010, the effective date is the later of the date that such claim was received by VA or the date disability arose. 38 C.F.R. § 3.816(c)(2). The May 2011 rating decision granted service connection for ischemic heart disease associated with herbicide exposure and assigned a 10 percent evaluation, effective November 29, 2010. Entitlement to presumptive service connection under the Nehmer provisions is predicated upon the Veteran satisfying the criteria set forth in 38 C.F.R. § 3.309(e). This regulation states presumptive service connection is warranted for a veteran who was exposed to an herbicide agent, and subsequently develops one of the diseases listed in that provision. However, an important caveat is that 38 C.F.R. § 3.309(e) indicates the requirements of 38 C.F.R. § 3.307(a)(6) must also be met. Pursuant to 38 C.F.R. § 3.307(a)(6)(ii), the diseases listed in 38 C.F.R. § 3.309(e) must have "become manifest to a degree of 10 percent or more." As such, the central issue that must be addressed in this matter is whether the evidence of record for the period November 19, 2002 to November 29, 2010, establishes that the Veteran manifested ischemic heart disease to a compensable degree. The Board has carefully reviewed the Veteran's entire claims record; however, there is no evidence establishing the Veteran's disability had manifested to a compensable degree at any time between November 19, 2002 and November 29, 2010. Therefore, the criteria for an earlier effective date have not been met. It wasn't until the November 29, 2010, that the Veteran reported chest pain on exertion and angina pectoris was added to the problem list. Based on these facts, no effective date for the award of service connection for ischemic heart disease earlier than November 29, 2010, is assignable, and the claim for an earlier effective date must be denied based on the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than November 29, 2010, for the grant of service connection for ischemic heart disease associated with herbicide exposure, is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs