Citation Nr: 1640199 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 12-20 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than March 18, 2003, for the grant of service connection for coronary artery disease (ischemic heart disease), status post coronary artery bypass graft (CABG), associated with herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jaime M. Porter, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The RO in Buffalo, New York, now has jurisdiction over this case. FINDINGS OF FACT 1. The Veteran's initial informal claim for entitlement to service connection for a heart condition was received by VA on March 18, 2003. 2. An August 2011 rating decision granted service connection for coronary artery disease (ischemic heart disease), status post coronary artery bypass graft associated with herbicide exposure, and assigned an effective date of March 18, 2003. 3. The claims file contains no other informal claim, formal claim, or any written intent to file a claim of entitlement to service connection for coronary artery disease (ischemic heart disease) and/or a heart condition prior to March 18, 2003. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than March 18, 2003, for the award of service connection for coronary artery disease (ischemic heart disease), status post coronary artery bypass graft associated with herbicide exposure, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.400, 3.816 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties 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, and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for an earlier effective date for the award of service connection for coronary artery disease arises from his disagreement with the effective date awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the effective date assigned for the award of service connection, only the notice requirements for a rating decision and a statement of the case described in 38 U.S.C.A. §§ 5104 and 7105 control as to further communications with the claimant, including what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required statement of the case in July 2012. The statement of the case cites the applicable statutes and regulations and discusses the reasons and bases for not assigning an effective date earlier than March 18, 2003, for the award of service connection for coronary artery disease. 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. Thus, further development of the evidence is generally 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 met in regard to the claim for an earlier effective date. Legal Criteria 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, VA has promulgated special rules for the effective dates for the grant 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 Veterans' Administration. See 38 C.F.R. § 3.816; see also Nehmer v. U. S. Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U. S. Veterans' Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans' Admin. of the Gov't 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" or the surviving spouse of a deceased Vietnam veteran who died from a "covered herbicide disease." See 38 C.F.R. § 3.816. Here, the Veteran served in 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). A "covered herbicide disease" is 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. 38 C.F.R. § 3.816(b)(2). Ischemic heart disease, to include coronary artery disease, was not added to the list of diseases subject to presumptive service connection due to herbicide exposure until August 31, 2010. 75 Fed. Reg. 53, 202 (Aug. 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010, rule specifically notes that the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease. Id. 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 (in this case, August 31, 2010). See 38 C.F.R. § 3.816(c)(1)-(2). If a claim was denied between September 25, 1985, and May 3, 1989, or there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law establishing a presumption of service connection, then 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). 38 C.F.R. § 3.816(c)(1)-(2). Paragraph (c)(3) provides that if the class member's claim was received within one year of separation from service, the effective date of the award shall be the day following the date of separation from active service. However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) 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 additional exceptions are set forth that are not pertinent to this appeal. Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). 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). VA must look to all communications from a claimant, informal and formal, that may be interpreted as applications or claims for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). However, the Court has held that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 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. 38 C.F.R. § 3.816(c)(2). Analysis In February 2011, VA initiated a review of the Veteran's claims file in accordance with Nehmer v. U. S. Department of Veterans Affairs. In an August 2011 rating decision, the RO granted service connection for coronary artery disease (ischemic heart disease), status post coronary artery bypass graft, on a presumptive basis as due to herbicide exposure, assigning a 60 percent evaluation effective March 18, 2003, and a 30 percent evaluation effective September 9, 2005. However, the Veteran contends that an earlier effective date in either 1985 or November 1993 is warranted. In assigning an effective date for coronary artery disease, the RO liberally interpreted the Veteran's claim for service connection for posttraumatic stress disorder (PTSD), filed on March 18, 2003, as an informal claim for service connection for heart disease. The basis for this interpretation was medical evidence submitted in connection with the PTSD claim that indicated the Veteran had a triple bypass heart surgery in 1993. Additional medical evidence was subsequently submitted that supported service connection for a heart condition, for which the Veteran filed a formal claim in March 2010. Thus, when the RO granted service connection in August 2011, it adopted the date the PTSD claim was received as the effective date for the Veteran's coronary artery disease. In these situations, by law, in which the Veteran had a claim for benefits for a heart condition pending before VA between May 3, 1989, and August 31, 2010, the effective date of the award will be the later of the date of claim or the date the disability arose. 38 C.F.R. § 3.816(c)(2). The evidence of record reflects that the Veteran's disability arose in November 1993, thus making March 18, 2003, the later of the two dates. The Board acknowledges that medical evidence of record reflects that the Veteran had coronary artery disease as early as November 1993. However, as noted above, a specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). To the extent the Veteran is arguing that private treatment records dated in November 1993 constitute an informal claim, the Board notes that they were not associated with the record until May 2010, which is after the effective date assigned. Moreover, even if these medical records had been obtained prior to March 18, 2003, they still do not constitute an informal claim under 38 C.F.R. § 3.155 because treatment records do not indicate an intent to apply for service connection benefits. 38 C.F.R. § 3.155(a). Although the provisions of 38 C.F.R. § 3.157 allow for a report of examination or hospitalization by VA to be accepted as an informal claim for benefits (without any indication of intent to apply for benefits) in certain instances, the provisions are limited to instances where the Veteran is applying for an increased rating where service connection or pension has already been established, or when a claim for compensation was previously disallowed for the reason that the service-connected disability was not compensable. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Moreover, the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). The Veteran also argues that he is entitled to an earlier effective date based on his 1985 filing of an administrative claim with the Department of Navy for personal injuries due to the military's use of Agent Orange in the Republic of Vietnam. In February 2012, the Veteran submitted to VA a May 1985 letter from the Department of Navy, in which the Veteran's personal injury claim was denied. The Veteran is, in essence, arguing that the Department of Navy claim is an earlier claim for service connection for coronary artery disease due to herbicide exposure, thereby entitling him to an earlier effective date for service connection. However, the Department of Navy claim cannot be considered a VA claim because there is no evidence that it was filed with VA. See 38 C.F.R. § 3.1. Finally, the Veteran's claim was not received within one year from the date of his separation from service. Thus, an effective date of the day following the date of his separation from service is not warranted under 38 C.F.R. § 3.816(c)(3). In summary, the Board has carefully reviewed the record and determined that no communication was received from the Veteran prior to March 18, 2003, that could be interpreted as a formal or informal claim for entitlement to service connection for a heart condition, to include coronary artery disease. Thus, the Board concludes that an earlier effective date is not warranted in this case under the VA regulations governing effective dates for the award of service connection, including based on application of the Nehmer provisions. See 38 C.F.R. §§ 3.400, 3.816. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for an earlier effective date. Consequently, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date prior to March 18, 2003, for the award of service connection for coronary artery disease (ischemic heart disease), status post coronary artery bypass graft associated with herbicide exposure, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs