Citation Nr: 1748672 Decision Date: 10/30/17 Archive Date: 11/06/17 DOCKET NO. 12-20 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date prior to June 30, 2009 for service connection for coronary artery disease, for accrued benefits purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, to include service in the Republic of Vietnam. He died in January 2010. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Detroit, Michigan, which, in part, granted service connection for coronary artery disease, with a history of myocardial infarction, with an effective date of June 30, 2009, "for purposes of entitlement to retroactive benefits." In June 2017, the appellant was afforded a videoconference hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2015). FINDINGS OF FACT 1. The Veteran died in January 2010. 2. There was no claim for service connection for coronary artery disease pending at the time of the Veteran's death; no periodic monetary benefits were due and payable at the time of the Veteran's death. CONCLUSION OF LAW There are no accrued benefits payable. 38 U.S.C.A. §§ 5102, 5103, 5103A and 5121 (West 2015); 38 C.F.R. §§ 3.102, 3.159, 3.1000 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to an effective date prior to June 30, 2009 for service connection for coronary artery disease, for accrued benefits purposes. At her hearing, held in June 2017, the appellant asserted that an earlier effective date is warranted because the Veteran was shown to have coronary artery disease "way before he filed that claim in 2009." Although her testimony is not entirely clear, she also appeared to indicate that she no longer disagreed with the RO's decision, that she had only appealed because she did not understand what the RO had done in December 2010, and that she would not have appealed had she been provided with a copy of the July 5, 2012 statement of the case. Specifically, she stated, "[I]f they had, it would have prevented my being here today because it would have explained everything." Nevertheless, in the absence of a clear withdrawal of the claim, the Board will proceed. See 38 C.F.R. § 20.204 (2016); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Background The relevant history of this claim is as follows: The Veteran's discharge (DD Form 214) shows that he had service in the Republic of Vietnam. The Veteran died in January 2010. The certificate of death states that the immediate cause of death was coronary artery disease, due to or as a consequence of congestive heart failure. At the time of his death, service connection was in effect for: posttraumatic stress disorder, urinary incontinence, diabetes mellitus, type 2, peripheral neuropathy of the bilateral lower extremities, status post left inguinal ring weakness, hypertension, and bilateral cataracts. The Veteran's combined evaluation was 100 percent as of November 30, 1992. He was also receiving special monthly compensation under 38 U.S.C.A. § 1114(k) and (s) (West 2015). On January 20, 2010, the appellant filed a claim for Dependency and Indemnity Compensation (DIC), and accrued benefits. In May 2010, the RO inter alia granted entitlement to DIC under 38 U.S.C.A. § 1318 (West 2015), and denied the following issues for the purposes of accrued benefits: service connection for chronic obstructive pulmonary disease, an increased rating for service-connected diabetes mellitus, evaluated as 40 percent disabling, an increased rating for service-connected peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling, an increased rating for service-connected peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, and an increased rating for hypertension, evaluated as noncompensable. In July 2010, the RO granted service connection for the cause of the Veteran's death. In December 2010, the RO inter alia granted service connection for coronary artery disease for accrued benefits purposes, with an effective date of June 30, 2009. The RO stated that although the Veteran did not have a claim for service connection for coronary artery disease (CAD) pending at the time of his death, that VA medical records, received on June 30, 2009, showed that he was diagnosed with CAD. The RO further indicated that service connection was warranted under 38 C.F.R. 38 C.F.R. §§ 3.307 and 3.309, because CAD had been added to the list of disabilities recognized as being related to herbicide exposure. The RO stated that the effective date assigned for service connection for CAD was therefore June 30, 2009, "the date the medical evidence was received by VA, showing a diagnosis of CAD." However, the RO ultimately denied the claim for accrued benefits, explaining that the Veteran's combined evaluation for service compensation was 100 percent as of November 30, 1992, and that the increase in his service-connected disabilities for retroactive benefits would not have increased his monthly rate, therefore, no money is owed. In February 2011, the appellant filed a notice of disagreement as to the issue of entitlement to an earlier effective date for coronary artery disease, for accrued benefits purposes. She appeared to request verification of the grant, stating, "If that is correct, I have no paperwork from your department showing that (A Statement of the Case) is the fact," and, "I am requesting a Statement of the Case for June 30, 2009." She further asserted that the Veteran had filed a claim in May 2009, apparently with the RO in Reno, Nevada, pertaining to his heart condition. The arguments are somewhat unclear, however, it appears that she was arguing that an earlier effective date for service connection was warranted based on the date of onset, and severity of, the Veteran's heart condition and/or Nehmer. Upon the death of a Veteran, the Veteran's lawful surviving spouse may be paid periodic monetary benefits to which the Veteran was entitled at the time of death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the Veteran died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. An accrued benefits claim arises after a veteran has died. Although a veteran's claim does not survive his death, certain individuals may be entitled to accrued benefits under certain conditions. Landicho v. Brown, 7 Vet. App. 42, 47 (1994). One of the requirements for accrued benefits is that a claim must be filed within the year after a veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. For a surviving spouse to be entitled to accrued benefits, "the Veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Jones v. West, 136 F.3d 1296, 1299-1300 (Fed. Cir. 1998). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c). In turn, the term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160 (d). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p) (2016). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a) (2016). Analysis The appellant filed an application for DIC benefits, including for accrued benefits, in January 2010. The application was received within one year after the date of the Veteran's death; thus, it was filed in a timely manner. See 38 C.F.R. § 3.1000. The issues are whether the Veteran had a pending claim for service connection for coronary artery disease at the time of his death, and, if so, whether an effective date for service connection prior to June 30, 2009 is warranted. Notwithstanding the RO's grant of service connection for coronary artery disease, the Board finds that there is no "pending claim" upon which accrued benefits may be based. The Board first notes that the RO's December 2010 rating decision contains multiple misstatements of law. First, the RO essentially stated that the assignment of June 30, 2009 as the effective date was based on the receipt of VA medical records which showed a diagnosis of coronary artery disease. However, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, such that any diagnosis would be considered to be shown as of the date of the medical report. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Second, under the circumstances, the Veteran's VA treatment records do not constitute a claim for service connection. While information contained in treatment records may constitute an informal claim, this is only appropriate in cases where service connection has already been established, or where a claim was previously denied due to the disability not rising to a compensable level. 38 C.F.R. § 3.157 (b) (2016); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006). In the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). The Court has held that the mere presence of a disability, or an attempt to obtain treatment, does not establish intent on the part of a veteran to seek service connection for that condition. Brannon v. West, 12 Vet. App. 32, 35 (1998); KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995); Dunson v. Brown, 4 Vet App. 327, 330 (1993). Finally, for service connection to be granted under 38 C.F.R. §§ 3.307 and 3.309, there must be an underlying claim for service connection. As explained below, no such claim is shown. Determining whether an informal claim has been filed usually requires an application of the law--that is, the definition of an informal claim found at 38 C.F.R. § 3.155 (a), to the facts of a particular case. Westberry v. West, 12 Vet. App. 510, 513 (1999). In March 2009, the Veteran filed claims for service connection, and increased ratings, for chronic obstructive pulmonary disease (COPD), asbestos exposure, diabetes mellitus, hypertension, and peripheral neuropathy. Between the filing of his claims in March 2009 and his death, there was extensive correspondence between the RO and the Veteran to ensure proper development of his claims, including obtaining all relevant medical records. None of this correspondence can reasonably be construed to show that the Veteran ever intended to file a claim for service connection for coronary artery disease. In this regard, the only mention of a heart condition is found in a letter pertaining to the Veteran's inability to attend scheduled VA examinations for these claims, received in December 2009. In that letter, the Veteran mentioned that he had recently been in and out of numerous hospitals for heart, kidney, COPD, and pneumonia. There is nothing in this letter reasonably indicating an intent to file a claim for service connection for coronary artery disease. This letter is therefore insufficient to show that the criteria for a claim for service connection were met. 38 C.F.R. § 3.155 (a); Westeberry. There is no other evidence of record that can reasonably be construed to show that the Veteran ever intended to file a claim for service connection for coronary artery disease. The RO appears to have misapplied the relevant laws in its December 2010 award of service connection. The Board further notes that this case is distinct from cases in which a veteran filed a claim, but died prior to initiating or perfecting an appeal. See e.g., Taylor v. Nicholson, 21 Vet. App. 126, 129 (2007); Teten v. West, 13 Vet. App. 560, 562 (2000). While the claim for accrued benefits filed by a spouse is separate from the claim filed by a veteran prior to his death, the accrued benefits claim is derivative of the veteran's claim, and his spouse takes the veteran's claim as it stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). In summary, the Veteran is not shown to have filed a claim for service connection for coronary artery disease. While the Board will not disturb the RO's decision, as it resulted in no prejudice to the appellant, it remains that the Board is the finder of fact on this issue. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1998); Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010). The Board therefore finds that there is no "pending claim" upon which accrued benefits may be based. The Board further points out that, even assuming arguendo that the RO was correct in finding that a claim for service connection for coronary artery disease was received as of June 30, 2009, a grant of the claim would still not be warranted. There is no evidence of record that can reasonably be construed to show that the Veteran ever intended to file a claim for service connection for coronary artery disease, let alone prior to June 30, 2009. Furthermore, a 100 percent combined rating is in effect as of November 30, 1992. There is no evidence to show, and the appellant does not assert, that the Veteran ever filed a claim for service connection for coronary artery disease prior to November 30, 1992, such that any accrued benefits would be payable. In this regard, it appears that the Veteran was first diagnosed with coronary artery disease many years after his combined 100 percent rating took effect. Thus, even if the Board were to accept the RO's finding that a claim was filed on June 30, 2009, the claim could still not be granted. The Board has considered that 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 38 C.F.R. § 3.816; see also 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." 38 C.F.R. § 3.816. According to 38 C.F.R. § 3.816 (b)(2) 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. 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, alternately, if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the statue or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816 (c)(1)-(2). 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. 38 C.F.R. § 3.816 (c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In 2010, changes were made to the regulation for presumptive service connection for veterans shown to have been exposed to Agent Orange. See 75 Fed. Reg. 14391 (March 25, 2010); 38 C.F.R. § 3.309 (e). These changes added inter alia ischemic heart disease as a presumptive disorder. Under 38 C.F.R. § 3.309 (e) (2016), ischemic heart disease is stated to include, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm), and coronary bypass surgery. These changes were made effective by VA as of August 31, 2010. See 75 Fed. Reg. 53,702 (August 31, 2010). In this case, the regulation applicable to awards under the Nehmer Court Orders do not warrant a grant of the claim. The Veteran did not have a claim for coronary artery disease that was denied at any time prior to 1989. In addition, even if the Board were to accept arguendo that a claim for service connection was received on June 30, 1999, there is no evidence of record that can reasonably be construed to show that the Veteran ever intended to file a claim for service connection for coronary artery disease prior to this date (June 30, 2009). Therefore, a grant of the claim would not be warranted on this basis. See 38 C.F.R. § 3.816 (c)(1)-(2). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C.A. § 5107 (b). The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. § 3.159 (2016). However, a VCAA notice need not be provided, where, as here, the claim involves an earlier effective date for service connection, because the VCAA is no longer applicable. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). In addition, VCAA notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001). ORDER Accrued benefits are denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs