Citation Nr: 1739908	
Decision Date: 09/18/17    Archive Date: 09/29/17

DOCKET NO.  13-02 670	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio


ISSUES

1. Entitlement to an effective date earlier than June 8, 2010, for ischemic heart disease.  

2. Entitlement to a disability rating in excess of 30 percent from November 2, 2010, for ischemic heart disease.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

E. Morgan, Associate Counsel


INTRODUCTION

The Veteran had active duty service from January 1962 to September 1984.  

The appeal comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision from the RO in Cleveland, Ohio. The Veteran had a hearing before the undersigned Veterans Law Judge in Washington DC in March 2017. A transcript of that hearing is associated with the claim's file. 


FINDINGS OF FACT

1. The evidence of record supports that the Veteran's claim for service connection for ischemic heart disease did not arise until June 8, 2010. 

2. Throughout the entire period on appeal, the Veteran's ischemic heart disease has manifested ability to achieve workloads of mostly greater than 5 METs prior to the onset of fatigue, ejection fraction of 60 percent and higher, and has not manifested more than one episode of acute congestive heart failure in any given year. 


CONCLUSIONS OF LAW

1. The criteria for an earlier effective date for ischemic heart disease prior to June 8, 2010, have not been met. 38 U.S.C.A. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816 (2016).

2. The criteria for an increase in a disability rating for ischemic heart disease in excess of 30 percent from November 2, 2010, have not been met. 38 U.S.C.A. 
§§ 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.104, Diagnostic Code 7005 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Date for Ischemic Heart Disease 

The Veteran contends that he is entitled to an effective date prior to June 8, 2010, for the grant of service connection for ischemic heart disease. Specifically, he stated in his statement in support of his claim on VA Form 21-4138 in June 2010 that "I am requesting service connection for Ischemic Heart due to Agent Orange exposure in Vietnam. I am requesting this claim be considered a Nehmer case...I had Ischemic Heart Disease at least as early as separation from the military, I brought it to the attention of the VA, and I indicated at that time that it was due to Agent Orange exposure." At his hearing before the Board he testified that his effective date should be October 2, 1984, based upon a January 1985 VA examination. He has also claimed that an earlier effective date should be awarded because he had additional abnormal echocardiograms (ECG). Based upon a thorough review of the evidence the Board finds that an earlier effective date is not warranted. 

Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." When an application for disability compensation is received within one year of the date of the Veteran's discharge or release from service, the effective date of such award shall be the day following the Veteran's release. 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2).

With respect to earlier effective date claims involving service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has issued special regulations to implement orders of a United States district court in the class action of Nehmer v. United States Dep't of Veterans' Affairs. 38 C.F.R. § 3.816  (2016). See Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States 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).

Specifically, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease; or a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i) & (ii). The term "covered herbicide disease" includes coronary artery disease. 38 C.F.R. § 3.816(b)(2). This regulation applies to claims for disability compensation for the covered herbicide disease that were either pending before VA on May 3, 1989, or were 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. 38 C.F.R. § 3.816(c).

If a Nehmer 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 dates (1) such claim was received by VA, or (2) the date the disability arose. 38 C.F.R. § 3.816(c)(2). A claim will be considered a claim for compensation for a particular covered herbicide disease if the application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating intent to apply for compensation for the covered herbicide disability. 38 C.F.R. § 3.816 (c)(2)(i).

VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R.  
§ 3.151(a). An informal claim may be any communication or action, indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998).

Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

In this case, the Veteran had a normal ECG in July 1984 at retirement from military service. In October 1984 the Veteran filed a claim for a "heart ailment." 

In March 1985 a VA medical examiner reviewed the medical evidence in the claims file, recounted the Veteran's history and recited his complaints. The examiner reviewed an abnormal ECG from January 1985. The Veteran was diagnosed with hypertension.  

In July 1987 VAMC medical records show that a routine ECG was requested due to the clinical impression of hypertension. Selected on the form by the requesting physician were hypertensive cardiovascular disease and pulmonary disease. The physician did not select coronary artery disease, valvular or congenital heart disease or primary myocardial disease, which were other options on the form. 

In August 1988 the Veteran filed a claim for exposure to Agent Orange. The Veteran had abnormal ECGs in: January 1997, October 2011, January 1997, November 1993, February 2003, March 2005 and July 2009. There was no diagnosis for ischemic heart disease or coronary artery disease at any time accompanying these abnormal ECGs. 

In November 2010 the Veteran had a VA examination for Ischemic Heart Disease. The examiner reviewed the medical evidence in the claims file, recounted the Veteran's history and recited his complaints. The examiner reported a diagnosis of ischemic heart disease with a date of diagnosis as November 1, 2010. The examiner noted that the Veteran was informed that in 2003 he had a septal infract and no treatment was required. He was negative for congestive heart failure. The examination included findings from a nuclear stress test, an EKG, an echocardiogram, and a chest x-ray. 

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 June 8, 2010, when the Veteran's claim for "ischemic heart disease" was received, for the award of service connection for his ischemic heart disease. As stated above, ischemic heart disease is a presumptive service-connected disease associated with exposure to certain herbicides including Agent Orange, and encompasses ischemic heart disease. See 38 C.F.R. § 3.309(e). 

Here, the Board observes that VA received a claim for service connection for a "heart ailment" on October 25, 1984. In April 1985 the VA granted service connection for the Veteran's hypertension and chronic obstructive pulmonary disease (COPD) with an effective date of October 1, 1984. The Veteran did not appeal that decision and that VA decision, having been fully adjudicated, became final. 

On June 8, 2010, the Veteran filed a claim for service connection for "Ischemic Heart due to Agent Orange exposure in Vietnam." His ischemic heart disease was diagnosed in November 2010, as stated above. The Veteran is not entitled to an earlier onset date because there was no application for the presumptive disease before VA prior to June 2010. 38 C.F.R. § 3.816(c)(2)(i). 

The Veteran's claim was pending before the Board between May 3, 1989, and August 31, 2010, the effective date of the regulation. June 8, 2010, is the earliest possible effective date that the Veteran's presumptive service connection claim for ischemic heart disease as a Nehmer class member, as that is the date he filed his claim. 

In sum, the Veteran's application for service-connection for a "heart ailment" was fully adjudicated and that VA decision became final when the April 1985 RO decision was not appealed. The Veteran's claim for ischemic heart disease was filed in June 2010. See 38 C.F.R. § 3.816(2).  The evidence of record supports that the earliest claim for Nehmer purposes is June 8, 2010. 

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 June 8, 2010,for the grant of service connection for ischemic heart disease. In sum, the preponderance of the evidence is against entitlement to an effective date prior to June 8, 2010, for the grant of service connection for coronary artery 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; Nehmer.

Entitlement to an Increase in A Disability Rating in Excess of 30 percent 
after November 2, 2010.

The Veteran asserts that his ischemic heart disease warrants an increase to a 30 percent disability rating as of December 15, 2015.  The Veteran testified before the undersigned Veterans Law Judge that he was diagnosed with congestive heart failure in December 2015. The Board finds that the evidence of record does not support argument for a disability rating increase in excess of 30 percent for ischemic heart disease due to congestive heart failure at any time on appeal. 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

The Veteran's ischemic heart disease is rated under DC 7005, under which a 10 percent evaluation is warranted for arteriosclerotic heart disease with a documented history of ischemic heart disease where a workload of greater than 7 METs (metabolic equivalents), but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent evaluation is warranted for arteriosclerotic heart disease with a documented history of coronary artery disease where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted where there is more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent evaluation is warranted with chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005.

One MET 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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 1.

VAMC medical records from August 2014, October 2016, December 2016 and January 2017 list chronic congestive heart failure in the Veteran's past medical history.  On December 15, 2015, the Veteran's primary care physician lists chronic congestive heart failure with diastolic dysfunction in his medical record and increased his prescription for Lisinopril to 40 mg. 

On December 23, 2015, the Veteran had a VA examination for Heart Conditions: (Including Ischemic & Non-ischemic Heart Disease, Arrhythmias, Valvular Disease and Cardiac Surgery). The examiner found that the Veteran did not have congestive heart failure. The examiner viewed an ECG from March 2015. The Veteran's ejection fraction was 55-60 percent. The result of the ECG was abnormal. The results of an interview-based METs test greater than 5 but not greater than 7 METs with symptoms of dyspnea and fatigue. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower) and heavy yard work (digging). A nuclear chemical stress test showed a 58 percent left ventricle ejection reflects which was an increase from 49 percent. Mild hypokinesis of the septum and inferior wall were reported. No interval change in the wall motion was noted when compared to the prior study. No perfusion defects are seen. The overall perfusion appears better than the prior exam. The examiner' rationale is that the left ventricle ejection fraction reflects Veteran's current cardiac status rather than estimated METs as the latter is influenced by his co-morbid condition of obesity, depression and COPD. 

Based upon a preponderance of the evidence the Board finds that in this case that the Veteran's ischemic heart disease symptoms do not warrant a disability rating in excess of o30 percent from the November 2, 2010. 

In this case, the RO found the Veteran's ischemic heart disease to be 60 percent disabling effective June 8, 2010, the date service connection was established for his condition. The evidence shows that a 60 percent evaluation was warranted at the time based on an earlier myocardial perfusion scan documenting an ejection fraction of 49 percent on October 13, 2010.  The evidence from an ECG shows that on November 2, 2010, the Veteran's ejection fraction increased to 65 to 70 percent. As such, the 30 percent rating was assigned. 

At no point has the Veteran had congestive heart failure diagnosed by a cardiologist; neither is he under the care of a cardiologist for congestive heart failure. The medical record reflects that in December 2015 the Veteran's primary care doctor increased his medication of Lisinopril to 40 mg and noted congestive heart failure. However, the primary care physician did not report a decreased ejection fraction, or decreased METs. There was no accompanying diagnostic testing to diagnose congestive heart failure. Moreover, the Board notes that at no time in the record does any diagnostic testing support a finding of congestive heart failure. 

Accordingly, a disability rating in excess of 30 percent beginning November 2, 2010, is not warranted for ischemic heart disease.  As the symptoms have remained stable since that time, there is no basis for staged rating of the Veteran's disability. In sum, the Board finds that the preponderance of the evidence is against an increase in the Veteran's ischemic heart disease disability rating. See 38 C.F.R. § 4.71a, Diagnostic Code 7005. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert.	

Neither the Veteran nor his representative have raised the issue of a separate rating, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Duty to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided in July 2010.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's VA medical records have been obtained. Also, he was provided several VA examinations of his disability, as discussed above. These examinations and their associated reports were adequate. Along with the other evidence of record, they provided sufficient information and sound bases for decisions on the Veteran's claims. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).  

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2016).  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.

Here, during the Board hearing, the Veteran was provided an opportunity to submit additional evidence in support of his claim. The record remained open for 60 days for additional medical evidence. The Board reviewed additional evidence. Such actions comply with 38 C.F.R. § 3.103.

Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. 


ORDER

Entitlement to an earlier effective date than June 8, 2010, for ischemic heart disease is denied. 

Entitlement to an increase in a disability rating in excess of 30 percent for ischemic heart disease from November 2, 2010, is denied. 




______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs