Citation Nr: 1644883	
Decision Date: 11/30/16    Archive Date: 12/09/16

DOCKET NO.  14-39 941	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease. 


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel


INTRODUCTION

The Veteran had active service from January 1969 to November 1970 with the United States Army, including service in Vietnam.  He is the recipient of a Combat Infantry Badge and Purple Heart. 

This matter comes before the Board of Veterans' Appeal (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In February 2016, the Veteran testified at a Board hearing at the local RO before the undersigned Veterans Law Judge.  A copy of the hearing transcript has been associated with the record. 

This appeal was processed using the paperless, electronic Virtual VA and Veterans Benefit Management System (VBMS) claims processing systems.  


FINDINGS OF FACT

1.  The Veteran is presumed to have been exposed to herbicides coincident with his service in Vietnam.
 
2.  The Veteran was first diagnosed with coronary artery disease in May 2001.
 
3.  The Veteran did not file a claim of entitlement to service connection for ischemic heart disease, to include coronary artery disease, or a claim that can be reasonably construed as a claim for service connection for ischemic heart disease prior to February 9, 2007.
 
4.  Ischemic heart disease, including coronary artery disease, was added to the list of diseases presumed to be related to herbicide exposure effective August 31, 2010.


CONCLUSION OF LAW

The criteria for an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114, 3.158, 3.400, 3.816 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 and 3.326(a) (2015). 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R.  § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

In the instant case, the Veteran's claim arises from an appeal of the assigned effective date following the grant of service connection.  Courts have held that 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 under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159. 

Pertinent to the duty to assist, the Board notes that the relevant evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim.  However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his application for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already of record.  There is no outstanding information or evidence that would help substantiate the Veteran's claim.  VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A.  See VAOPGCPREC 5-04 (June 23, 2004). 

Moreover, in February 2016, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

Here, during the February 2016 hearing, the undersigned noted the issue on appeal and information was obtained regarding the Veteran's contentions.  In addition, the hearing focused on the elements necessary to substantiate the Veteran's claim, to include requesting further information concerning any previously filed claims for heart disorders as well as when the Veteran was initially diagnosed with coronary artery disease.  The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the testimony did not reveal any additional, outstanding evidence that is necessary to decide the case.  Rather, as indicated previously, the Veteran's arguments on appeal are limited to his interpretation of governing legal authority.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II. Analysis

The Veteran contends that he is entitled to an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease.  Specifically, he has claimed that an earlier effective date should be awarded because he was initially diagnosed with coronary artery disease in May 2001.

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later.  See 38 C.F.R.  § 3.400.  The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service.  

Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).

If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a).  Ischemic heart disease, to include coronary artery disease, was added to the list of diseases subject to service connection on a presumptive basis due to herbicide exposure on August 31, 2010.  38 C.F.R. § 3.309(e); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010).

There are exceptions to this rule, however, which allow for retroactive payments.  If the claim is reviewed on the initiative of VA or by request of the Veteran/claimant within 1 year from the effective date of the law or VA issue, then the proper effective date is the same date the change of law went into effect.  38 C.F.R. 
§ 3.114(a)(1).  If a claim is reviewed on the initiative of VA or by request of the Veteran/claimant more than one year after the effective date of the law, the effective date will be one year prior to the date of administrative review or Veteran/claimant request if the Veteran met all of the requirements for eligibility as of the date of the liberalizing law.  38 C.F.R. § 3.114(a)(2), (3).  These rules do not apply in the Veteran's case as he has already been assigned an effective date prior to the date of the liberalizing law at issue. 

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 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).

If a Nehmer "class member" is entitled to a disability compensation for a "covered herbicide disease," the effective date of the award will be the later of the date such claim was (originally) received by VA or the date the disability arose.  38 C.F.R. 
§ 3.816(c)(1)-(2).

Specifically, a Nehmer "class member" is defined as a Vietnam Veteran who has a "covered herbicide disease." Id.  The regulation as currently written defines a "covered herbicide disease" to include the diseases 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.  The new diseases added to the list of presumptive disabilities in August 31, 2010, which includes ischemic heart disease, are not technically part of 38 C.F.R. § 3.816(b)(2).  Id.; but see 75 Fed. Reg. 53, 202 (August 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 the Nehmer provisions apply to the newly covered diseases.  Id. 

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.  A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.  

(2) If the class member's claim for disability compensation for the covered herbicide disease 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.  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 submissions 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.  

(3) 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.  

(4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400.

In the instant case, as the Veteran served in Vietnam and has a diagnosis of ischemic heart disease, he is considered a Nehmer class member and, as such, the provisions of 38 C.F.R. § 3.816 are applicable.  However, despite consideration of such provisions, the Board finds that the Veteran is not entitled to an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease.

Importantly, the Veteran was not denied compensation for coronary artery disease between September 25, 1985, and May 3, 1989; his claim for service connection was not pending before VA on May 3, 1989; and his initial claim was not received within one year from the date of his separation from service.  Thus, the effective date shall be the later of the date such claim for service connection was received by VA or the date the disability arose.  See 38 C.F.R. § 3.816(2).  

In this case, the Veteran never filed a claim of entitlement to service connection for ischemic heart disease, to include coronary artery disease, or a claim that can be reasonably construed as a claim for service connection for ischemic heart disease prior to February 9, 2007.  Importantly, the Veteran had not asserted that he filed a prior claim.  The Board recognizes that the Veteran has been suffering from coronary artery disease since May 2001.  However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA.  See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).  

In conclusion, while the Board acknowledges the Veteran's belief that an earlier effective date is warranted, the Board is precluded by statute and regulation from assigning an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease.  In sum, the preponderance of the evidence is against entitlement to an effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease and, as such, the benefit-of-the-doubt doctrine does not apply.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

An effective date prior to February 9, 2007, for the award of service connection for coronary artery disease and hypertensive heart disease, is denied. 




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs