Citation Nr: 1751312	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  13-03 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to an effective date prior to March 4, 2008 for the grant of service connection for coronary artery disease.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Smith, Associate Counsel

INTRODUCTION

The Veteran served honorably on active duty in the U.S Air Force from June 1966 to April 1970.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of that proceeding is of record.


FINDINGS OF FACT

1.  The Veteran did not file a formal or informal claim for benefits for service connection for coronary artery disease prior to May 3, 1989, or in between that date and March 4, 2008.

2. The Veteran was diagnosed with coronary artery disease on December 6, 2006.


CONCLUSION OF LAW

The criteria for an effective date earlier than March 4, 2008, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017).  In this case, the Veteran is challenging the underlying evaluation and effective date assigned for the grant of service connection.  Where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated, and there is no need to provide additional § 5103 notice, nor is there prejudice from absent notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); VAOPGCPREC 8-2003 (Dec. 22, 2003).  Neither the Veteran nor his representative has raised any issues with the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2017.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Board will proceed to address the merits of the appeal.

Law and Analysis

The Veteran argues he is entitled to an effective date prior to March 4, 2008 for the grant of service connection for coronary artery disease because he was first diagnosed with the condition on December 6, 2006 at St. Mary's Medical Center in Huntington, West Virginia.

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) (2012); 38 C.F.R. § 3.400 (2017).  

With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation.  However, it is the date when the claimant met the requirements for the benefits sought, which is determined on a "facts found" basis.  38 U.S.C.A. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  An effective date generally can be no earlier than the "facts found."  DeLisio v. Shinseki, 25 Vet. App. 45 (2011).  These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).  

With regard to the date of claim, prior to March 24, 2015 any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim.  A claim is defined 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 (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim.  38 C.F.R. § 3.155(a).  The presence of the medical evidence alone does not establish an intent on the part of the veteran to file a claim for benefits, and medical evidence alone cannot be an informal claim.  Brannon v. West, 12 Vet. App. 32, 35 (1998).  When determining the effective date of an award of compensation benefits, VA must review all the communications in the file after the last final disallowance of the claim that could be interpreted to be a formal or informal claim for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 

VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits.  VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations.  Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  

Identification of a disorder or medical evidence of a disorder alone is insufficient to constitute an informal claim.  38 C.F.R. § 3.155(a); Brannon, 12 Vet. App. at 35.  Rather, there must be an indication of intent to seek benefits for the identified disorder.  In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).  A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition.  Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination).

Nevertheless, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement 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 (2017); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999); Nehmer v. Veterans Admin. of the Gov't of the U. S., 284 F.3d 1158 (9th Cir. 2002); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846   (2007).  The Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114.

In pertinent part, 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).  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.  38 C.F.R. § 3.816(b)(2).  Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010.  See 75 Fed. Reg. 53, 202 (August 31, 2010).  Despite the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010, rule specifically notes that the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease.  See 75 Fed. Reg. 53,202 (August 31, 2010); Garza v. Shinseki, 480 Fed. Appx. 984, 987 (Fed. Cir. 2012) (specifically associating ischemic heart disease with Nehmer despite the language of 38 C.F.R. § 3.816). 

The Nehmer 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.  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 (here August 31, 2010). In these situations, 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, unless a claim was filed within one year of service discharge.  38 C.F.R. § 3.816(c)(1), (c)(2), (c)(3).

The Veteran underwent an Agent Orange examination in September 1983, at which time he reported a history of fatty tumors on his skin, but no other complaints.  A September 1983 VA letter documented the Veteran underwent an Agent Orange registry examination and was found to be in good health without any adverse health effects from Agent Orange.  A November 1986 record from John Marshall Medical Services documented the Veteran underwent an Agent Orange evaluation in September 1986.  The examination reported made no findings or diagnoses related to the heart.

A December 6, 2006 private medical report documented the presence of soft plaque in the Veteran's left anterior descending artery, approximately 60 to 70 percent in severity.  This report was included in records received from the Social Security Administration (SSA).  The claims folder indicates these records were received on December 6, 2006.  The SSA records, however, also include records that are dated up to June 2008.  Also, the record shows that VA first requested records from SSA in June 2009, and the November 2008 rating decision that first denied the Veteran's claim of entitlement to service connection for coronary artery disease did not list SSA records among the list of evidence received.  The Board thus finds that the receipt date in the claims file is in error as these records could not have been received prior to their existence.  

On March 4, 2008, VA received a claim for service connection for malaria from the Veteran.  The Veteran also reported service in Vietnam and exposure to Agent Orange.  The Veteran did not specifically mention heart problems at this time.  The Veteran's claim for service connection for diabetes mellitus was received May 16, 2008; and a June 11, 2008 VA examination report noted coronary artery disease under a section entitled "other significant history or symptoms related to diabetes."
In a November 2008 rating decision, the RO denied the Veteran's claim for service connection for coronary artery disease as secondary to claimed diabetes mellitus.  The claim was eventually granted in a November 2010 rating decision.

In the May 2011 notice of disagreement, the Veteran's representative wrote that the effective date for the grant of service connection for coronary artery disease should be September 1993, when the Veteran first filed his claim for benefits.  At the January 2017 Board hearing, the Veteran instead argued that the effective date should be December 6, 2006 when he was first diagnosed with heart disease.

Here, the Veteran's first formal claim of entitlement to service connection for benefits related to exposure to Agent Orange was received March 4, 2008.  A former claim was not denied between September 25, 1985, and May 3, 1989, and the Veteran's claim was not received within one year from the date of his separation from service, which was in 1970.  However, the Veteran's claim was received between May 3, 1989, and the effective date of the liberalizing statute on August 31, 2010.  Thus, 38 C.F.R. § 3.816(c)(2) governs in the instant case.  Under this regulation, the effective date of the award in this case is the later of the date that the claim was received by VA or the date the disability arose, regardless if those dates are prior to the date of the regulation granting presumptive service connection.

The Veteran contends that the effective date should reflect the date entitlement arose, or, the date of the December 6, 2006 diagnostic studies showing the presence of coronary artery disease.  Unfortunately, VA regulations require that the effective dated is the later of this date and the date VA received his claim.  Thus, in order to receive an earlier effective date, the evidence must show an informal claim for heart disease prior to March 4, 2008.

The Board finds that an informal claim for service connection for heart disease was not raised by the Veteran or the record prior to March 4, 2008.  The record contains no communication from the Veteran indicating an intent to seek or a belief in entitlement to service connection for a heart disorder prior to March 4, 2010.  This finding was also made with consideration of the provisions of 38 C.F.R. 
§ 3.816(c)(2)(i), noting that a claim will be considered a claim for compensation for a particular covered herbicide disease if the Veteran'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.  In this case, although the Veteran participated in the Agent Orange registry program and underwent Agent Orange registry examinations in the 1980s, he did not have a diagnosed heart disorder at that time or any heart related complaints.  Simply put, there is no correspondence or other records received prior to March 4, 2008 that would constitute an informal claim for service connection for heart disease.   

Although sympathetic to the Veteran's contentions, the currently assigned effective date of March 4, 2008 is proper.  Because the requirements of 38 C.F.R. 
§ 3.816(c)(2) are met in the present case, it is not necessary to consider the liberalizing law provisions of 38 C.F.R. § 3.114.  As the preponderance of the evidence is against the Veteran's claim for an effective date earlier than March 4, 2008, the claim is denied.  


ORDER

Entitlement to an effective date prior to March 4, 2008 for the grant of service connection for coronary artery disease is denied.



____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs