Citation Nr: 1749009 Decision Date: 10/31/17 Archive Date: 11/06/17 DOCKET NO. 15-44 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than February 6, 2011, for the grant of service connection for coronary artery disease, status post coronary artery bypass grafting (heart disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active duty service from April 1960 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran presented testimony at a Decision Review Officer hearing at the RO in October 2016. A copy of the transcript is in the claims file. 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). FINDING OF FACT The claims file includes no statement or communication from the Veteran, or other document, prior to February 6, 2011, that constitutes a claim for service connection for a heart disability. CONCLUSION OF LAW The criteria for an effective date prior to February 6, 2011, for the grant of service connection for a heart disability have not been met. 38 U.S.C.A. §§ 501, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400, 3.816 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The resolution of the Veteran's appeal for an earlier effective date turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose. As this case turns on a matter of law and does not support the assignment of an effective date earlier than February 6, 2011, for the grant of service connection for a heart disability, further assistance, such as the further procurement of records, would not assist the Veteran with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Nonetheless, the Veteran has been notified of how VA assigns effective dates. Earlier Effective Date Claim The Veteran is seeking an effective date earlier than February 6, 2011, for the grant of service connection for his heart disability. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2016). If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110 (b)(1) (West 2014); 38 C.F.R. § 3.400(b)(2)(i) (2016). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a) (2016). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In such cases, in no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a) (2016). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA administrative issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA administrative issue. 38 C.F.R. § 3.114(a)(1) (2016). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114(a)(3) (2016). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i) (2016). The term "covered herbicide disease" now includes ischemic heart disease (IHD). 38 C.F.R. § 3.816(b)(2)(i) (2016). The regulation applies to claims for disability compensation 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)(2) (2016). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation for a covered herbicide disease. The regulation applies to a claim for compensation where either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816(c)(1), (c)(2) (2016). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant's application and other supporting statements and submissions may reasonably be viewed under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2) (2016). In such situations, the effective date of the award will be the later of the date such claim was received by VA or the date entitlement arose. 38 C.F.R. § 3.816(c)(1), (c)(2) (2016). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816(c)(4). The effective date of the regulation that added IHD as a disease presumptively due to in-service exposure to herbicides is August 31, 2010. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). Under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is warranted, in pertinent part, for IHD, including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. As a preliminary matter, the Board finds that there is no dispute as to the facts essential to resolution of this appeal: Specifically, the Veteran does not contend that he filed a claim of entitlement to service connection for a heart disability prior to February 6, 2011. In a June 2015 statement, he acknowledged that he did not file a formal claim for service connection for a heart disability until February 2012. Rather, he generally seeks an earlier effective date for the grant of service connection for this disability. Specifically, in a June 2015 statement, the Veteran stated that he was advised of a heart condition in 2004 and 2005 and that his heart disability was a disabling disability due to his Agent Orange exposure. He stated that he was advised that it would be futile to apply for service connection for a heart disability at that time. He stated that since he was exposed to herbicide agents in the 1960s, he was requesting an effective date of 2004. In an October 2016 statement, the Veteran requested an effective date of service connection for his heart disability in 2004. He stated, "When I started to avail myself of the VA services, I informed the VA of my heart condition and asked for their assistance. In this regard, the VA provided me with prescription drugs to hopefully forestall the need for open heart surgery (bypass surgery was required in 2007). I interpreted the VA's words and actions in 2004 (and subsequently) as a denial of a claim for disability compensation." He stated that in January 2005, he received disability compensation for a back disability and would have made a "formal claim" for a heart disability had he been encouraged to do so. He said that he "assumed in 2004 that the VA medical staff and claims representative were one [and] the same when he was advised not to bother filing a 'formal' claim." He contends that his VA claim was established in 2004, even though a "formal" claim was not filed at that time. In this case, as previously stated, the Veteran filed an informal claim for service connection for a heart disability on February 6, 2012. At that time, the Veteran noted that his naval vessel had recently been added to the VA list of "brown water" ships serving in the Republic of Vietnam. He noted that he was diagnosed with heart disease in 2004 and requested a 2004 effective date for service connection for his heart disability. Later that month, on February 29, 2012, the Veteran filed a formal claim for service connection for ischemic heart disease. In a July 2012 rating decision, the RO granted service connection for coronary artery disease, status post coronary artery bypass grafting, effective from February 6, 2011. In a November 2012 statement, the Veteran requested an earlier effective date in 2004 for the grant of service connection for his heart disability. He explained that his heart disability dated back prior to his March 2012 VA heart examination. In a January 2013 rating decision, the RO denied entitlement to an earlier effective date for service connection for the Veteran's heart disability. The RO determined that the date of the Veteran's claim for service connection for heart disease was February 6, 2012, pursuant to Nehmer guidelines, because there was no evidence of a diagnosis of heart disease prior to the date of his service connection claim. The RO explained that under Nehmer, service connection for coronary artery disease secondary to herbicide exposure can be granted earlier than the date of the change in law establishing this as a presumptive condition if there was an informal claim for service connection for coronary artery disease due to herbicide exposure pending at the time the law was changed. The RO noted that the evidence of record showed a diagnosed heart disability prior to the date of the liberalizing law and granted an effective date of February 6, 2011, one year prior to the claim for service connection for the Veteran's heart disability. The Veteran appealed this rating decision. See 38 C.F.R. § 3.114(a)(3) (2016). In a January 2013 notice of disagreement, the Veteran requested an effective date earlier than February 6, 2011 for the grant of service connection for his heart disability based on the contention that his claim was "extant with the VA" prior to the date of his informal claim. He argued that "VA had full knowledge of my conditions after the nuclear stress test and other examinations that they conducted...dating back to February 28, 2005, which I feel should be the date used for disability entitlement purposes." In a March 2013 rating decision, the RO again denied an effective date earlier than February 6, 2011 for the grant of service connection for a heart disability. The RO explained to the Veteran that although the records indicate treatment of a heart disability as early as 2004, VA first received evidence of heart disease in association with his service connection claim. The RO also indicated that medical records alone no longer constitute a claim for Nehmer purposes. In his March 2013 notice of disagreement, the Veteran again blamed his failure to file a claim for service connection for a heart disability prior to February 2012 on VA's failure to advise him to do so prior to 2012. He contended that he was provided with a nuclear test and stress tests, but was "told that heart conditions were not a disability issue" when he was given the tests "so there seemed to be no point in filing a claim at that time." He also stated that although VA had knowledge of his heart condition in early 2005, it was unaware of any link between his heart condition and herbicide agent exposure at that time. He felt that Nehmer was not applicable to his particular case. At an October 2016 Decision Review Officer hearing, the Veteran testified that he would have filed an earlier claim for service connection for heart disease if he had not been discouraged from doing so by his physicians. He testified that the physicians told him that he did not have a claim. Considering the proper effective dates for service connection for coronary artery disease under the Nehmer provisions, the Board finds that the Veteran was not denied compensation for the disability between September 25, 1985, and May 3, 1989; his claim for service connection was not pending before VA on May 3, 1989 or received by VA between that date and the August 31, 2010 date establishing a presumption of service connection for coronary artery disease; and his claim was not received within one year from the date of his separation from service. Thus, the Board must determine the effective date in accordance with 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816. Considering these provisions, because VA received the Veteran's claim of entitlement to service connection for IHD, which includes coronary artery disease, on February 6, 2012, more than 1 year after the effective date of the law, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. See 38 C.F.R. § 3.114(a)(3). As a result, February 6, 2011 is the correct effective date for service connection for heart disease based on the claim received on February 6, 2012. In making these findings regarding the earliest informal or formal claim received by VA, the Board acknowledges the Veteran's argument that he was diagnosed and treated for a heart disability as early as 2004. While there are treatment records documenting heart disease prior to the currently-assigned February 6, 2011, effective date, those records do not indicate that the Veteran intended to apply for benefits or that he identified the benefit sought. Therefore, the VA treatment records do not constitute an informal claim under 38 C.F.R. §§ 3.155 and/or 3.157. With regard to the Veteran's October 2016 claim that he interpreted VA's words and actions in 2004 as a denial of a claim for disability compensation, none of the rating decisions prior to the July 2012 rating decision which granted service connection for coronary artery disease, status post coronary artery bypass grafting, effective from February 6, 2011, discussed a diagnosis or symptoms of heart disease. Indeed, the RO did not mention any heart disorder in these decisions, even implicitly. In summary, there is no reasonable basis to construe these earlier rating decisions as denying compensation for service connection for ischemic heart disease, even implicitly. 38 C.F.R. § 3.816(c)(2)(ii). The Board is aware that "the 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and, thus, finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well, based on several factors. Adams, 568 F.3d at 962-63. However, in the instant case, there was no explicit or implicit reference to a heart disorder in any of the earlier RO decisions, and there was no earlier informal claim from the Veteran for service connection for ischemic heart disease. It follows that the "implicit denial rule" holdings do not change the Board's denial of this earlier effective date claim in the present case. See e.g., Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing Adams, 568 F.3d at 963-64) (the four factors to be considered includes: (1) the specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication; (3) timing of the claims; and (4) whether the claimant is represented). The Board acknowledges the Veteran's frustration regarding his contention that he failed to file a claim for heart disease earlier than February 2012 due to poor advice from medical providers. While the Board is sympathetic toward the Veteran and grateful for the Veteran's honorable service to our country, the Board is bound and constrained by law, and its decision is dictated by the relevant statutes and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board sympathizes with the Veteran's frustration, but is constrained to apply the law as Congress has created it and cannot extend benefits out of sympathy for a claimant. Accordingly, an effective date earlier than February 6, 2011, for the grant of service connection for coronary artery disease, status post coronary artery bypass grafting, is not warranted. 38 C.F.R. § 3.102. ORDER An effective date earlier than February 6, 2011, for the grant of service connection for coronary artery disease, status post coronary artery bypass grafting, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs