Citation Nr: 1756665 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-06 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than August 17, 2001, for the grant of service connection for coronary artery disease (CAD) related to herbicide exposure. ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from December 1966 to December 1969, to include in Vietnam. He died in 2009 and the appellant is the Veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The case was remanded in August 2015 for evidentiary development and to obtain a medical opinion. All actions ordered by the remand have been accomplished. Pursuant to VA's duties to notify and assist the appellant, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDING OF FACT Probative medical evidence indicates that the earliest onset of the Veteran's CAD disability was August 17, 2001. CONCLUSION OF LAW The criteria for an effective date earlier than August 17, 2001, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). To be eligible for a retroactive payment under these provisions, 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. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). VA has promulgated special rules for the effective dates for the grant 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 Veterans Administration. 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). A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including coronary artery disease. 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 if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law, which in this case is August 31, 2010. See 38 C.F.R. § 3.816 (c) (1)-(3). If 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 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 date such claim was received by VA or the date the disability arose, whichever is later. (Italics added). If the above requirements are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c). As an initial matter, the appellant argues that the Veteran filed a claim of service connection for coronary artery disease at some point in 1978. The contention is without merit. No evidence of such an application has been found in the electronic record. Moreover, the claimant's contention is not otherwise supported by the record, because in an August 1984 application for service connected compensation, the Veteran himself reported that he had only previously filed a claim for VA educational assistance benefits. The block indicating "disability compensation or pension" benefits was left blank. See block 9b, application received August 9, 1984. There is otherwise no relevant correspondence in the record from the Veteran dated as received earlier than May 1987, when the Veteran filed a claim of service connection for "Agent Orange." He was denied service connection in October 1987. Although he mentioned "skin" and "lump on chest," he did not otherwise specify the nature of his claimed disorder. In particular, there is no mention of any cardiac disorder. Moreover, and as noted, applicable regulation states that it is the later of either the date the Veteran was denied compensation for a covered herbicide disease or the date the disability arose that a retroactive effective date will be granted. VA treatment records show that the Veteran was first diagnosed with CAD in August 2001. Probative medical evidence does not indicate that the Veteran's CAD disability arose prior to this date. In May 2017, a VA examiner reviewed the Veteran's electronic record to determine if the Veteran demonstrated the onset of CAD prior to August 17, 2001. The examiner opined "it is less likely than not that the Veteran [had] a diagnosis of CAD" because there were no objective cardiac studies, such as a cardiac catherization study, that would provide evidence to support a diagnosis of CAD prior to the Veteran's death in 2009. For example, an April 1996 cardiac radiology report noted that the Veteran's heart was normal. In fact, on a July 1996 health questionnaire for dental outpatients, the Veteran, signed in his own handwriting, indicated he did not have heart disease, heart or valve surgery, or a heart pacemaker. He noted he had high blood pressure, and that he was taking medication for this condition. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). It is beyond question that the Veteran provided valuable service to his country during his military tenure. He enlisted in the Army, served in Vietnam as a field wireman and completed his full enlistment. However, the Board has carefully reviewed the record in depth and it has been unable to identify a basis upon which relief may be granted. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503 , 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). It has been observed that "no 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 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. After reviewing the entire record, the August 17, 2001, notation of treatment for CAD is the earliest evidence of the onset of CAD. The claim for an earlier effective date for service connection for CAD is denied. ORDER Entitlement to an effective date earlier than August 17, 2001, for coronary artery disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs