Citation Nr: 1748435 Decision Date: 10/27/17 Archive Date: 11/03/17 DOCKET NO. 16-11 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to December 23, 1991, for the award of service connection for coronary artery disease (CAD), status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery associated with herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1964 to February 1967 and from February 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Service connection for ischemic heart disease was denied in an April 1977 rating decision; the Veteran did not appeal and the decision became final. 2. An October 2010 rating decision granted service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery associated with herbicide exposure, pursuant to an August 31, 2010 amendment to 38 C.F.R. § 3.309(e) which added ischemic heart disease, including CAD, as a presumptive herbicide-related disease. 3. Evidence of heart disease was submitted in the course of the Veteran's December 23, 1991 claim for entitlement to service connection for a hand and wrist injury. 4. Service connection for the Veteran's heart disease was granted effective December 23, 1991, pursuant to the Nehmer May 1991 Stipulation and Order allowing for a retroactive effective date if evidence of ischemic heart disease or CAD was received in the course of the appeal of an unrelated claim. 5. The Veteran was not denied compensation for heart disease between September 25, 1985 and May 3, 1989; nor did he have a claim pending for compensation before VA on May 3, 1989. 6. VA received no communication from the Veteran that constitutes a formal or informal claim for service connection for heart disease prior to December 3, 1991. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than June 11, 2010, for the grant of service connection for CAD, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.114, 3.400, 3.816 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Accordingly, the Board will address the merits of the claim. II. Merits of the Effective Date Claim The Veteran contends that he is entitled to an effective date earlier than December 23, 1991 for service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery associated with herbicide exposure. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation was received within one year after separation from service, the effective date will be the day following separation from service or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). 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. 38 C.F.R. § 3.816 (b)(1)(i). If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and the date the disease at issue was added to the list of diseases presumed to be have been incurred as a result of exposure to herbicides, 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. 38 C.F.R. § 3.816(c)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on the date the disease at issue was added to the list of diseases presumed to be have been incurred as a result of exposure to herbicides, 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. 38 C.F.R. § 3.816(c)(2). If the class member's claim 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. See 38 C.F.R. § 3.816(c)(3). If the requirements of (c)(1) or (c)(2) are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114, 3.400. 38 C.F.R. § 3.816(c)(4). Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where compensation is awarded or increased pursuant to a liberalizing law or VA issue, which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53, 202. The intended effect of this amendment was to establish presumptive service connection for these diseases based on herbicide exposure. Note 3 indicates that for purposes of this section the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e). The VA administrative claims process 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 an 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). Here, the Veteran was discharged from active duty in February 1967 and in November 1970. He served in the Republic of Vietnam from March 1969 to March 1970. In February 1977, the Veteran filed a claim for disability pension. An April 1977 rating decision noted that during the Veteran's hospitalization in February 1977, an electrocardiogram (EKG) revealed left ventricular hypertrophy and records indicated that the Veteran had hypertension and was provided medication for an ischemic heart condition. The April 1977 rating decision denied service connection for ischemic heart disease with left ventricular hypertrophy and hypertension and determined that the Veteran's disabilities were not of sufficient severity to prevent him from engaging in substantially gainful employment. The Veteran was properly notified of the rating decision in an April 1977 notification letter and the decision became final. The Veteran filed numerous applications to reopen his claim for entitlement to service connection for heart disease, which were denied in a March 1995 rating decision, October 1997 rating decision, October 1999 Board decision, and December 2007 rating decision. In October 2010, the Veteran filed another application to reopen his claim for entitlement to service connection for ischemic heart disease. A September 2011 rating decision granted service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery pursuant to the August 31, 2010 amendment to 38 C.F.R. § 3.309(e) which added ischemic heart disease, including CAD, as a presumptive herbicide related disease. The Veteran was assigned an effective date of December 23, 1991, which he subsequently appealed, asserting that he was entitled to an earlier effective date due to the 1971 rating decision acknowledging the Veteran's ischemic heart disease and denying service connection for the condition. After a review of the entire evidentiary record in light of the applicable legal criteria, the Board finds that an effective date earlier than December 23, 1991, for the award of service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery is not warranted. Pursuant to the Nehmer May 1991 Stipulation and Order, awards of disability compensation may, in some circumstances, be made effective retroactive to the date of an earlier claim that was filed or denied before such regulations were issued. See 66 Fed. Reg. 23166, 23167 (May 8, 2001). Relevant to the Veteran's claim, a Nehmer class member can receive the effective date of an unrelated earlier claim if evidence of the covered condition is submitted in the course of the appeal for the unrelated claim. See Veterans Benefits Administration's (VBA's) Revised Training Letter 10-04 at 19 (Feb. 10, 2011). Specifically, if at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now-covered condition (e.g., ischemic heart disease or CAD), then the condition is considered to have been part of the previously denied claim. Id. Here, the RO assigned an effective date of December 23, 1991 based on treatment records submitted at the time the Veteran applied for entitlement to service connection for a hand and wrist injury. The treatment records revealed medical evidence of ischemic heart disease and therefore, the RO, according to the above guidance, determined that an earlier effective date of December 23, 1991 was more appropriate than the October 2010 date of claim. While the Board acknowledges the Veteran's contention that he had a diagnosis of ischemic heart disease and was denied service connection in 1971, that decision became final and the special rules promulgated by VA for Nehmer class members concerning effective dates do not apply to claims denied prior to September 25, 1985. The Veteran was not denied compensation for heart disease between September 25, 1985 and May 3, 1989, nor was there a denial of service connection for a disability that can be reasonably viewed as a denial of heart disease, between September 25, 1985 and May 3, 1989. The evidence reveals that between the April 1977 rating decision and the December 23, 1991 claim for service connection for a hand and wrist injury, the Veteran did not submit any formal or informal claims, nor was any medical evidence received during this period. For this reason, 38 C.F.R. § 3.816(c)(1) is not applicable. The Veteran did have claims for heart disease that were received and denied by VA between May 3, 1989 and August 31, 2010 (the effective date of the regulation establishing a presumption of service connection for ischemic heart disease, including CAD) and therefore 38 C.F.R. § 3.816(c)(2) is applicable. See February 1994 claim for hypertensive heart disease due to Agent Orange exposure; October 1996 claim for heart condition post heart attack; and June 2006 claim for heart condition due to Agent Orange exposure. The regulation calls for an effective date of the award to be the later of the date VA received the claim on which the prior final denial was based or the date the disability arose. However, as noted above and to the benefit of the Veteran, the RO granted an effective date of December 23, 1991 according to the Nehmer May 1991 Stipulation and Order and not July 17, 1992 according to 38 C.F.R. § 3.816(c)(2). Finally, the Veteran's claim was received more than one year after his separations from military service in February 1967 and November 1970, therefore 38 C.F.R. § 3.816(c)(3) is not applicable. For all the above reasons, the Board finds that entitlement to an effective date earlier than December 23, 1991 for a grant of service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery associated with herbicide exposure is not warranted. There is no evidence of a formal claim, informal claim, or written intent to file a claim for heart disease prior to December 23, 1991 but after September 25, 1985. While the Veteran contends he is entitled to an earlier effective date, the April 1977 denial of compensation for heart disease falls outside of the liberalizing law regarding earlier effective dates for ischemic heart disease, including CAD, and therefore, an earlier effective date is not warranted. In accordance with the Nehmer May 1991 Stipulation and Order, the currently assigned effective date of December 23, 1991 is appropriate. ORDER Entitlement to an effective date earlier than December 23, 1991, for the award of service connection for CAD, status post percutaneous coronary intervention, myocardial infarction and coronary bypass surgery associated with herbicide exposure is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs