Citation Nr: 1616706 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 12-18 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than March 13, 2009, for service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas which granted service connection for coronary artery disease effective March 13, 2009. FINDINGS OF FACT 1. On March 13, 2009, a claim from the Veteran was received on a VA Form 21-526 which claimed entitlement to service connection for hearing loss, tinnitus, a back disorder and a left leg and knee injury; on this form the Veteran also checked the box indicating that he had been exposed to Agent Orange during service. 2. In June 2010 the Veteran submitted a claim for entitlement to service connection for ischemic heart disease on a VA Form 21-4138. 3. The evidence of record indicates a diagnosis of ischemic heart disease with onset in May 2003. 4. No communication or medical record prior to March 13, 2009 may be interpreted as a formal or informal claim of entitlement to service connection for ischemic heart disease. CONCLUSION OF LAW The criteria for an effective date prior to March 13, 2009 for the award of service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2014); 38 C.F.R. §§ 3.155, 3.157, 3.114, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). The Veteran's claim of entitlement to an earlier effective date arises from his disagreement with the effective date assigned for ischemic heart disease following the grants 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist the Veteran has also been satisfied in this case. VA has obtained the Veteran's service treatment records, service personnel records, and VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, as the outcome of this appeal turns on a determination as to the date that the underlying service connection claim was initiated, there is no need for a medical examination or opinion. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Veteran served on active duty from December 1965 to February 1977, including service in the Republic of Vietnam. On March 13, 2009, a claim from the Veteran was received on a VA Form 21-526 which claimed entitlement to service connection for hearing loss, tinnitus, a back disorder and a left leg and knee injury. On the claim form the Veteran also checked the box indicating that he had been exposed to Agent Orange during service. In June 2010, during the development of the Veteran's other claims for service connection, he submitted a claim for entitlement to service connection for ischemic heart disease on a VA Form 21-4138. An August 2010 VA Compensation and Pension examination indicates a diagnosis of ischemic heart disease with onset in May 2003. VA treatment records dating from 2004 confirm the diagnosis at that time. A November 2010 rating decision granted service connection for ischemic heart disease on a presumptive basis as a disease associated with Agent Orange exposure during service. See, 38 C.F.R. § 3.309(e). The effective date of service connection was set as March 13, 2009 which is that date of receipt of the Veteran's original claim for service connection. A notice of disagreement was submitted by the Veteran's representative, and merely indicated disagreement with the effective date assigned for the grant of service connection. The representative made no assertions as to what was believed to be the correct effective date for service connection. In July 2012, the Veteran submitted his substantive appeal on a VA Form 9. The Veteran stated that "I feel the issue in this case has been decided incorrectly because the coronary heart disease is presumed to be related to my exposure to Agent Orange which occurred in 1968." This statement appears to assert that the Veteran seeks an effective date of 1968, which is over four decades before he filed a claim for service connection, and almost a decade before he separated from active service. In September 2015, the Veteran's representative submitted a statement in lieu of a VA Form 646 which merely asserted that the Veteran "has discussed his contentions in the narrative section of his Substantive Appeal (VA Form 9), and in his Notice of Disagreement (NOD)." The Veteran's representative initiated this appeal by the filing of a notice of disagreement which merely disagreed with the effective date of service connection without offering any cogent argument as to what the effective date sought or warranted was, nor has the representative submitted any argument with respect to what the proper effective date asserted should be. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i) . However, the November 2010 award of service connection was based on a liberalizing law pertaining to diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e) (listing ischemic heart disease as a disease that shall be service-connected even though there is no record of such disease during service for certain veterans, including those who were exposed to herbicide agents during service in the Republic of Vietnam). 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). If, as is the case here, 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 that liberalizing law or VA issue. 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p). 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 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. Thus, under the Nehmer effective date provisions, the Board must analyze whether a claim for ischemic heart disease was filed prior to his June 2010 claim for service connection for heart disease, or whether VA denied compensation for ischemic heart disease, with consideration that the effective date of the liberalizing law is August 31, 2010. Although the record reflects that there was no prior claim or denial expressly relating to "ischemic heart disease," the Veteran did submit his initial claim for service connection for a variety of disorders which was received on March 13, 2009. On this claim form he did check the box indicating that he had been exposed to Agent Orange during active service in Vietnam. . Again, an August 2010 VA Compensation and Pension examination indicates a diagnosis of ischemic heart disease with onset in May 2003. VA treatment records dating from 2004 confirm the diagnosis at that time. While VA records support a diagnosis of ischemic heart disease dating from May 2003, there is no communication or medical record dated prior to March 13, 2009 which may be interpreted as a formal or informal claim of entitlement to service connection for ischemic heart disease. As such, the Board finds that the Veteran did not submit a claim of entitlement to service connection for ischemic heart disease prior to his original claim for service connection which was received on March 13, 2009. More specifically, the Board finds that a claim of entitlement to service connection for ischemic heart disease was not pending before VA on May 3, 1989, and no claim such claim was received by VA between that date and March 13, 2009. See 38 C.F.R. § 3.816(c)(2). As discussed above, the Veteran submitted a claim for service connection on March 13, 2009. While he did not assert a claim for service connection for ischemic heart disease at that time, he did report exposure to Agent Orange, and the RO has construed this claim to include a claim for service connection for ischemic heart disease based on Agent Orange exposure. Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents, effective August 31, 2010. Service connection for ischemic heart disease was granted in a November 2010 rating decision. Despite the effective date of the change in the operative regulation being August 31, 2010, the RO assigned an effective date of March 13, 2009 which is the is earliest effective date available based on the liberalization of law. 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p), 3.816(c). As discussed above, generally, an effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The Veteran's original date of claim is March 13, 2009 as discussed above. A specific determination as to when entitlement arose is not required in this case. Even if the Board were to determine that entitlement to service connection for ischemic heart disease was warranted upon initial diagnosis in May 2003, which is prior to the March 13, 2009 effective date, the regulations require the Board to assign the later of the two dates. In other words, regardless of whether entitlement arose at any date prior to March 13, 2009, regulations require the Board to assign March 13, 2009, as the effective date. The only exception to this requirement would be if the Veteran filed a claim within one year of his military retirement. However, no such claim was submitted. Consequently, the Board finds that March 13, 2009 is the proper effective date for the grant of service connection for the Veteran's ischemic heart disease. ORDER Entitlement to an effective date earlier than March 13, 2009, for service connection for ischemic heart disease is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs