Citation Nr: 1648450	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  08-38 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

1.  Entitlement to an initial compensable rating for hairy cell leukemia.

2.  Entitlement to an earlier effective date for service connection of arteriosclerotic coronary artery disease, status post myocardial infarction prior to December 18, 2007.  


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

Erin J. Carroll, Associate Counsel


INTRODUCTION

The Veteran served on active military duty from September 1966 to April 1969. 

The appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for hairy cell leukemia and assigned a noncompensable evaluation.  

The Veteran testified in a March 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 

In July 2013, the appeal for an initial compensable rating for service-connected hairy cell leukemia was remanded for additional development.  

Additionally, the Board notes that in the July 2013 remand, the Veteran's claim for an earlier effective date prior to December 18, 2007 for the grant of service connection for arteriosclerotic (CAD), status post MI, was remanded for the issuance of a Statement of the Case (SOC).  The RO issued an SOC in October 2014.  The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015.  The Veteran submitted a November 2014 statement that indicated his wish to cancel his disagreement.  He was not specific about which disagreement he wished to cancel and also made an argument that veterans should be awarded 100 percent compensation from the date of a diagnosis associated with [an herbicide-related presumptive disorder].  As the Veteran's intent is unclear, and the statement was filed prior to March 24, 2015, the Board will address the issue as a perfected appeal.   See 38 C.F.R. § 20.302 (b)(2) (2016).


FINDINGS OF FACT

1. From July 30, 2004, the Veteran's service-connected hairy cell leukemia has not been an active disease or in a treatment phase; anemia did not require continuous medication for control, or transfusion of platelets or red cells at least once per year, but less than once every three months; and hemoglobin counts of 10 g/100 ml or less were asymptomatic.

2. The Veteran submitted an informal claim for service connection for arteriosclerotic coronary artery disease, status post myocardial infarction on January 3, 2006.  


CONCLUSIONS OF LAW

1. For the initial rating period, the criteria for a higher (compensable) rating for hairy cell leukemia from July 30, 2004, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7700, 7703, 7716-7703 (2016).

2. The criteria for an effective date of January 3, 2006, but not earlier, for the grant of service connection for arteriosclerotic coronary artery disease, status post myocardial infarction are met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. 
§§ 3.155, 3.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  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 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The VA satisfied its duty to notify by a letter mailed to the Veteran in February 2006 for his claim.  

The Veteran's claims are downstream issues, which were initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104  and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). There is no duty to provide additional notice in this case. 

Relevant to the duty to assist, the Veteran's VA treatment records have been obtained and considered.  He has not identified or provided authorization to obtain any additional, outstanding records and neither he nor his representative has indicated that other outstanding records exist.   

The RO provided the Veteran with a VA examination in February 2013 to evaluate the severity and provide a retrospective opinion of his hairy cell leukemia.  The Board also obtained an addendum VA opinion in November 2013.  The Board finds that the VA examination and addendum opinion are adequate to adjudicate the Veteran's appeal.  As discussed below, the examination opinions were based upon consideration of his pertinent medical history, his lay assertions and complaints, and describe the Veteran's condition in detail sufficient to allow the Board to make a fully informed determination.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  

Furthermore, neither the Veteran nor his representative have not alleged that his illness has worsened in severity since the most recent VA examination in February 2013. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Thus, with regard to his claim for an initial compensable rating, the Board finds that VA has fully satisfied its duty to assist.

II.  Initial Compensable Rating for Hairy Cell Leukemia

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. 

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 

When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1).

The Veteran's leukemia has been rated under Diagnostic Codes 7703-7700. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2016).

Under 38 C.F.R. § 4.117, Diagnostic Code 7703 (1990), leukemia requiring intensive treatment such as periodic irradiation or transfusion was rated as 100 percent disabling, otherwise it was rated as pernicious anemia. Under the pertinent parts of 38 C.F.R. § 4.117, Diagnostic Code 7700 (1990), pernicious anemia was rated as follows: incipient, with characteristic achlorhydria and changes in blood count, 30 percent disabling; and chronic, following acute attacks with characteristic definite departures from normal blood count, with impairment of health and severe asthenia, 60 percent disabling. 

Effective October 23, 1995, Diagnostic Code 7703 provides that leukemia with active disease or during a treatment phase is rated 100 percent disabling. Otherwise, leukemia is rated under the listed criteria for anemia (Diagnostic Code 7700) or aplastic anemia (Diagnostic Code 7716), whichever would result in the greater benefit. A Note to Diagnostic Code 7703 provides that the 100 percent rating shall continue beyond the cessation of any surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R § 3.105 (e) . If there has been no recurrence, the VA adjudicator is to rate on residuals. 38 C.F.R. § 4.117. 

Diagnostic Code 7700 provides ratings for hypochromic-microcytic and megaloblastic anemia, such as iron deficiency and pernicious anemia. Anemia with hemoglobin 10gm/100 ml or less, asymptomatic, is rated as noncompensable (zero percent). Anemia with hemoglobin 10gm/100ml or less, with findings such as weakness, easy fatigability, or headaches, is rated 10 percent disabling. Anemia with hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, is rated 30 percent disabling. Anemia with hemoglobin 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute), or syncope (three episodes in the last six months), is rated 70 percent disabling. Anemia with hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117. 

Diagnostic Code 7716 provides ratings for aplastic anemia. Aplastic anemia requiring continuous medication for control is rated 10 percent disabling. Aplastic anemia requiring transfusion of platelets or red cells at least once per year, but less than once every three months, or infections recurring at least once per year, but less than once every three months, is rated 30 percent disabling. Aplastic anemia requiring transfusion of platelets or red cells at least once every three months; or infections recurring at least once every three months is rated 60 percent disabling. Aplastic anemia requiring bone marrow transplant; requiring transfusion of platelets or red cells at least once every six weeks; or infections recurring at least once every six weeks is rated 100 percent disabling. 38 C.F.R. § 4.117.

At the outset, the Board notes that service connection for hairy cell leukemia was granted in an April 2006 rating decision. The RO assigned a noncompensable rating, with an effective date of July 30, 2004.  In that decision, the RO found that since chemotherapy treatment received for leukemia in the late 1990's, his dirsorder had been in remission.  A December 2005 VA examination showed no obvious residuals and his blood tests were normal.  

Pertinent evidence of record includes VA treatment records, the Veteran's lay testimony from the March 2012 hearing before the undersigned, the Veteran's lay statements, as well as VA examination opinions from December 2005, February 2013, and November 2013.

The Veteran was diagnosed with hairy cell leukemia in September 1999 and underwent seven days of chemotherapy soon afterwards.  A VA treatment record dated January 20, 2000, revealed that he was in clinical remission.  He reported that he felt normal and experienced marked improvement in his energy level.  The VA treatment provider noted that there was no evidence of hairy cell leukemia.  The Board acknowledges that an August 2001 VA treatment record reported that the treatment provider could not exclude a potential relapse of hairy cell leukemia at the time of that visit.  However, blood tests demonstrated that no hairy cell leukemia cells were present at that time.  Aside from the August 2001 record, VA treatment records from January 2000 through April 2009 showed that the Veteran had remained in remission since January 2000 and reported feeling well with few, if any, symptoms.    

The Board notes that in VA treatment records dated August 2001, August 2006, and March 2008, the Veteran reported experiencing night sweats, which he attributed to his leukemia treatment.  An August 2000 VA treatment record indicated that night sweats were present when treatment providers made the initial leukemia diagnosis.  

Additionally, VA treatment records dated May 2000 and August 2006 showed that the Veteran was presenting with purpura, which he attributed to his hairy cell leukemia.  However, since August 2006, he has not reported any signs of purpura.  The Board also acknowledges that VA treatment records dated May 2000, August 2000, and February 2001 reflect mild splenomegaly.  However, VA treatment records since February 2001 do not show that the Veteran's spleen has been enlarged  The purpura was not medically attributed to the Veterans service-connected leukemia and though the Veteran raised the issue during this appeal, he subsequently withdrew that appeal.  

In December 2005, the Veteran underwent a VA examination in connection with his claim for service connection for hairy cell leukemia.  He reported mild fatigability, but attributed that to his pacemaker.  He reported no symptoms of headaches, lightheadedness or unusual shortness of breath.  The VA examiner noted that the Veteran remained in remission and that there was no evidence of an enlarged spleen.  The examiner also noted that the Veteran reported that he had not undergone any transfusions, phlebotomy, or bone marrow transplants.  The VA examiner opined that light manual labor would not be precluded by his condition.  

In December 2008, the Veteran submitted a Notice of Disagreement, in which he reported that he was attending annual visits with his oncologist and expressed concern over the potential recurrence of his hairy cell leukemia.

In March 2012, the Veteran testified before the undersigned at a travel board hearing.  He testified that treatment providers considered his hairy cell leukemia to be inactive about three to four years after the end of his treatment in September 1999. The Veteran reported that he was experiencing night sweats.  He also testified that he was worried that his leukemia would become active again.

In February 2013, per the Board's November 2012 remand directives, the Veteran underwent another VA examination to specifically address the nature and extent of residuals of hairy cell leukemia and its treatment from 2004 to the present.  The VA examiner found that he continued to remain in remission and further noted that the only residual of treatment was asymptomatic anemia.  The examiner noted that the Veteran did not require transfusion of platelets and did not experience recurring infections.  His most recent hemoglobin level was 13.9.  The examiner opined that his condition did not impact his ability to work.  The Veteran informed the examiner that he previously saw his private oncologist in November 2011 and was informed that his hairy cell leukemia was still in remission and that he would no longer need to attend future follow up oncology appointments.  

The February 2013 examiner opined that it was less likely as not that there were any clinically significant residuals from the hairy cell leukemia condition at the time of the examination.  The examiner based his rationale upon the Veteran's statements that he had no complaints regarding his hairy cell leukemia at the time of the examination, as well as the fact that he no longer needed to continue his oncology follow up appointments.  Additionally, the examiner's review of the records identified asymptomatic anemia and thrombocytopenia that had returned to normal in the most recent lab work.  Thus, the examiner opined that this residual was not causing any clinically significant symptoms at that time.  The examiner also considered the Veteran's prior appointment with a VA treatment provider on January 9, 2012, at which time he denied a wide range of symptoms indicative of a new onset.  

In November 2013, per the Board's July 2013 remand directives, the February 2013 examiner provided an addendum opinion, which specifically addressed the retrospective history (back to July 30, 2004) of the Veteran's hairy cell leukemia.  The examiner noted that there was no evidence of any residuals from hairy cell leukemia after 2002, which was indicative of continued remission.  The examiner also noted that VA lab work since July 2004 did not show periods with documented hemoglobin levels of 10gm/100ml or less, 8gm/100ml or less, 7gm/100ml or less, or 5gm/100ml or less.  Fourteen of the fifteen hemoglobin tests since November 2002 were in the normal range of 13-18, except for the complete blood count recorded in September 2011, which was slightly low at 12.6;  he opined that this was a clinically insignificant value.  

Furthermore, the VA examiner reported that there was no evidence that the Veteran was diagnosed with hypochromic-microcytic anemia and megaloblastic anemia, such as iron-deficiency and pernicious anemia.  Although records demonstrated that the Veteran was anemic in October 1999 during his treatment, the examiner stated that low blood counts are common among oncology patients with an active disease or who are undergoing treatment for leukemia.  Thus, he opined that it was as likely as not that the transient anemia was due to the hairy cell leukemia and the chemotherapy.  The examiner based his rationale upon the records demonstrating that multiple complete blood counts in 2002 clearly showed that anemia had resolved since remission.

Additionally, the VA examiner noted that VA treatment records from November 2002 indicated essentially normal complete blood count results with only
one minor slightly anemic specimen, which was noted as not uncommon in previously treated oncology patients.  Thus, he opined that those results were clinically insignificant.  The examiner further noted that there was no record of continuous medications for anemia, or any transfusions or recurrent infections related to hairy cell leukemia after July 2004.

Regarding the Veteran's complained-of conditions and symptoms that he attributed to his hairy cell leukemia, the examiner noted that the itching and burning symptoms were caused by an unrelated condition and were not residuals.  He also opined that the scaling dry skin reported in November 2002 was not a residual, as it was diagnosed as dermatitis.  The examiner further noted that, during the February 2013 VA examination, the Veteran stated that he had not been experiencing any residuals.

The VA examiner also noted that there was no record of any treatment of flare-ups after July 2004.  He further opined that there was no evidence of functional limitations or residuals for both physical and sedentary work, based upon the VA examination performed on February 2013, as well as a telephone interview with the Veteran in November 2013 in which he stated he had no residual disabilities or impairment of function due to hairy cell leukemia since 2002.  Thus, based upon his review of the claims file and the telephone interview, the examiner opined that the Veteran had been in remission since at least 2002 without any clinically significant residuals and without functional impairments due to hairy cell leukemia.

In light of the aforementioned evidence, the Board concludes that for the entire appeal period, the Veteran's hairy cell leukemia disability has not warranted a compensable disability rating.  The Board notes that, based upon the VA examination opinions and VA treatment records, it appears that the Veteran has been in remission since 2002.  The Board further notes that the record does not indicate that the Veteran's leukemia is active or currently in treatment, and thus, the Board looks to diagnostic codes 7700 and 7716 to rate his current disability. See 38 C.F.R. § 4.117, DC 7703. A higher evaluation of 10 percent disabling is not warranted under DC 7700 because the record does not show that, since July 2004, his hairy cell leukemia has resulted in a hemoglobin count of 10gm/100 ml or less.  Specifically, fourteen of the fifteen hemoglobin tests since November 2002 were in the normal range of 13-18, except for the complete blood count of September 2011, which was slightly low at 12.6.  Additionally, the Veteran has not reported any symptoms such as weakness, easy fatigability, or headaches.  Moreover, the record does not indicate that he has any signs of pernicious anemia, such as dementia or peripheral neuropathy, and thus, separate ratings for those disorders are not warranted. 

Likewise, a higher evaluation of 10 percent disabling pursuant to Diagnostic Code 7716 is not warranted because the November 2013 VA examiner determined that the Veteran did not require continuous medication to control his anemia. Moreover, the November 2013 VA examination noted that the Veteran did not suffer from recurrent infections and he did not require transfusions at any time during the appeal period. Thus, a higher evaluation of 30 percent is not warranted under Diagnostic Code 7716.

In assessing the severity of the disability under consideration, the Board has considered the competent lay assertions regarding the symptoms experienced and observed, such as night sweats. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating require medical findings that are within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such the lay assertions are not considered to be more persuasive than the objective medical findings which, as indicated above, do not support the assignment of a higher rating at any point pertinent to this appeal.  

Therefore, as the preponderance of the evidence is against entitlement to an initial compensable rating for hairy cell leukemia, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id.

Although evidence has been considered in light of the provisions of 38 C.F.R. § 3.321 (b)(1), the Board does not find that the Veteran has described functional effects that are "exceptional" or not otherwise contemplated by the currently assigned ratings.  Rather, he has consistently reported having no complaints due to his hairy cell leukemia, except for a concern that it might recur in the future. Thus, the inactive status of his hairy cell leukemia is consistent with the degree of disability addressed by his current evaluation.  In this regard, the Board finds that the rating criteria contemplate the difficulties expressed by the Veteran, and there are no additional symptoms of his hairy cell leukemia that have not been addressed by the rating schedule.

The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability.  Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for his service-connected hairy cell leukemia. As such, the rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).

The Board has also considered whether an inferred claim for a total disability based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not contended, and the record as a whole has not indicated, that he is unable to maintain substantial employment due to his service-connected hairy cell leukemia.  In fact, during a May 2008 VA psychological examination, the Veteran reported that he was self-employed as an appraiser between 2004 and 2007, working approximately 60 hours per week, before decreasing his hours to between 45 and 50 hours per week.  He further stated that he retired in November 2007, due to the physical demands of the job and their effect on his heart condition.  Furthermore, the February 2013 and November 2013 VA examiner noted that the leukemia disability did not presently impact the Veteran's ability to work, and that this disability did not result in any functional impairments. Overall, the record reflects that the Veteran's hairy cell leukemia does not impact his ability to maintain substantial employment, and thus, the Board finds that Rice is inapplicable in this case.

III. Claim for Earlier Effective Date for Service Connection For Arteriosclerotic Coronary Artery Disease, Status Post Myocardial Infarction

Service connection for arteriosclerotic coronary artery disease, status post myocardial infarction was awarded in a July 2013 Board decision. The decision was implemented by the RO in the October 2013 rating decision on appeal and an initial 100 percent evaluation for the disability was assigned effective December 18, 2007, the date the RO determined the claim was received. The Veteran contends that an earlier effective date is warranted for the award of service connection.

"A specific claim in a form prescribed by the Secretary (or jointly with the Secretary of Health and Human Services, as prescribed by section 5105 of this title) must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." 38 U.S.C.A. § 5101 (a). 

The effective date for service connection shall be the earlier of the date of receipt of claim or the date at which entitlement arose, whichever is later. 38 C.F.R. § 3.400. A claim is defined by regulation 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).  Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim, except that the communication must identify the benefit sought. 38 C.F.R. § 3.155 (a). 38 C.F.R. § 3.1 (p) defines application for a benefit as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). 

VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim for benefits, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.150. If the formal claim is then received within one year of the date the appropriate form was sent to the claimant, it will be considered filed on the date of receipt of the informal claim. 38 C.F.R. §§ 3.151 (a), 3.155(a). 

The Veteran submitted a statement in November 2014, in which he made an argument that veterans should be awarded 100 percent compensation from the date of a diagnosis associated with an herbicide-related presumptive disorder.  The Board has accepted this statement as a perfected appeal.  

The Board has considered whether the Veteran submitted an informal claim for arteriosclerotic coronary artery disease, status post myocardial infarction at any point prior to December 18, 2007. The question is whether the Veteran indicated to VA that he was seeking service connection for this condition, as an informal claim must identify the benefit sought. See 38 C.F.R. § 3.155 (a).

The Board finds that the Veteran had submitted several earlier statements that discussed his heart condition prior to December 18, 2007. As such, the Veteran conveyed his desire to be compensated for these symptoms, which is sufficient to establish an informal claim. The earliest of these was his statement received January 3, 2006.  In this statement, the Veteran reported that he had atrial fibrillation in 2002, after which he required a pacemaker.  The Board accepts this as an informal claim received January 3, 2006.

Based on the above, the statement received January 3, 2006 was an informal claim and is the earliest informal claim on record.  As such, an earlier effective date of January 3, 2006, is warranted for service connection for arteriosclerotic coronary artery disease, status post myocardial infarction.

The Board has also considered whether the Veteran is eligible for an earlier effective date with respect to the assignment of effective dates for awards of service connection for diseases presumed to have been caused by herbicide exposure.  A limited exception to the statutory provisions governing the assignment of effective dates was created by the Nehmer line of cases: the final Stipulation and Order in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404   (N.D. Cal. 1989) (Nehmer I); the specific guidance describing the Stipulation and Order setting forth VA's ongoing responsibilities for further rulemaking and disability payments to class members provided in Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); the class action Order in Nehmer v. United States Veterans Administration, No. CV-86-6160 TEH (N.D. Cal., Dec. 12, 2000 ), and Nehmer et. al. v. Veterans Administration of the Government of the United States, 284 F. 3d 115 (9th Cir. 2002) (Nehmer III).

In August 2003, VA published regulations to implement these orders.  A Nehmer class member is defined as a Vietnam veteran who has 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" includes 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 CAD, was not added to the list of presumptive disabilities until August 31, 2010.  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, to include CAD. Id.  Accordingly, the Board concludes the Veteran is a "Nehmer class member" as defined in the law.

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.  See 38 C.F.R. § 3.816 (c)(1)-(2).  If a claim was denied between September 25, 1985 and May 3, 1989, 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).

If the class member's claim was received between May 3, 1989, and the effective date of the liberalizing law, 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 provided in paragraph (c)(3) of this section.  See 38 C.F.R. § 3.816 (c)(2). A claim will be considered a claim for compensation if the claimant's application or 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 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.

Paragraph (c)(3) provides that if the class member's claim was received within one year of his or her 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.  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.

A close review of statements made by the Veteran since his discharge from service shows no formal or informal claim for benefits associated with his heart until VA received his statement on January 3, 2006, as described above.  Since his claim was received between May 3, 1989, and the effective date of the liberalizing law, the effective date of the award is the later date, i.e., the date such claim was received by VA and not the date the disability arose as per e 38 C.F.R. § 3.816 (c)(2).



ORDER

1. Entitlement to an initial compensable rating for the service-connected hairy cell leukemia from July 30, 2004, is denied.

2. An earlier effective date of January 3, 2006, but not earlier, for service connection arteriosclerotic coronary artery disease, status post myocardial infarction is granted.



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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs