Citation Nr: 1757041 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-10 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than April 29, 2003, for the award of service connection for coronary artery disease. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968 with service in the Republic of Vietnam from September 1967 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. A claim of entitlement to service connection for coronary artery disease was not received within one year of the Veteran's discharge from service. 2. Service connection for coronary artery disease was granted in a December 2010 rating decision, assigning a 10 percent rating effective August 17, 2007. In a June 2011 rating decision, the RO awarded an earlier effective date of April 29, 2003. 3. The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for coronary artery disease prior to April 29, 2003. CONCLUSION OF LAW The criteria for an earlier effective date, prior to April 29, 2003, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. VA's duty to notify was satisfied by a letter dated in June 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment record have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Further, the Board finds that all necessary development of this downstream earlier effective date claim has been accomplished and, therefore, that appellate review of this claim may proceed without prejudicing the Veteran. Effective Date Claim Generally, 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 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. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 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. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only 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. Evidence from a private physician or layman will also be accepted as an informal claim for increased benefits, effective from the date received by VA. 38 C.F.R. § 3.157(b)(2). Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). 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 Veteran's Affairs. See 38 C.F.R. § 3.816 (2017). In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. A Nehmer class member is a Vietnam Veteran who has a covered herbicide disease. Covered herbicide diseases include ischemic heart disease, to include coronary heart disease. See 75 Fed. Reg. 53, 216 (Aug. 31, 2010); 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.816, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989, 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, except as otherwise provided in paragraph (c)(3) of this section. (2) 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 later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation if the claimant's application or 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 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. See 38 C.F.R. § 3.816(c). The Veteran contends that an effective date earlier than April 29, 2003 for the award of service connection for coronary artery disease is warranted. See Statement in Support of Claim entered in VBMS in June 2012. The Veteran asserted that in 1987, he had his first stent placed in his heart, which he believes supports the award of an earlier effective date for coronary artery disease. The Veteran separated from active service in September 1968. In October 2010, he filed a claim for service connection for coronary artery disease. See VA Form 21-0960A-1. As he did not submit a claim of entitlement to service connection for coronary artery disease within one year of service discharge, assignment of an effective date back to the day following his service discharge is not possible. The Board has considered whether any evidence of record prior to August 17, 2007, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Prior to the formal claim for service connection for coronary artery disease filed in October 2010, the Veteran submitted a claim in April 1997 for various other conditions. No statements submitted at that time suggest the Veteran was seeking service connection for coronary artery disease. Although the RO appeared to suggest in the rating decision on appeal that the April 1997 application constituted an original claim for the purposes of Nehmer, the Board notes that the provisions of 38 C.F.R. § 3.816(c) specifically indicate that the prior claim must be for the covered herbicide-related disease at issue. In the April 1997 application, the Veteran indicated that he was applying for service connection for leukemia as secondary to herbicide exposure, a rash of the groin, and a disability he described as "lotion-hands." The Veteran appealed the denial, and the later claims were recharacterized as a rash of the groin and hands. At no time during the pendency of that appeal did the Veteran submit a statement indicating that he wished to file a claim for heart disease. In addition, the Board has considered whether any evidence of record prior to October 2010, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran prior to October 2010 indicates an attempt to apply for service connection for coronary artery disease. However, no document submitted prior to this date indicates intent to pursue a claim of entitlement to service connection for coronary heart disease. In January 2011, the Veteran submitted VA 21-0960A-1 stating that he had developed coronary artery disease in 2003. He also submitted treatment records from his VA treating physician confirming his disease. The Veteran also submitted medical records from VA Medical center dated in 2003. See Medical Treatment Record Government Facility received in June 2011. Based on the medical records, the RO granted an earlier effective date of April 29, 2003. See June 2011 Notification Letter. In June 2012, the Veteran submitted a Statement in Support of Claim disagreeing with the April 29, 2009 effective date. He stated that he first had a stent placed in his heart on October 12, 1987. In September 2015, the Veteran submitted a statement from his VA physician stating that the Veteran had an extensive cardiac history since 1987 to include an angioplasty at the California Hospital in Los Angeles. A report of examination or hospitalization will be accepted as an informal claim for benefits only once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Although some of the Veteran's clinical records prior to April 29, 2003 do document complaints of coronary heart disease, such medical records cannot constitute an initial claim for service connection as no intent to file a claim prior to April 29, 2003 was noted. See Criswell v. Nicholson, 20 Vet. App. 501 (2006); see also Brannon v. West, 12 Vet. App. 32, 35 (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). The Board notes that during his December 2016 Board Hearing, the Veteran stated that in 1987, though DAV, he "probably" submitted an intent to file a claim for coronary heart disease. However, the Board notes that in his September 2008 Statement in Support of Claim, the Veteran attempted to re-open his claims for Agent Orange he filed in 1982 or 1983. According to his Third Party Statement, the claims included leukemia, hand disorder, groin rash, diabetes mellitus-II, and posttraumatic stress disorder (PTSD). The Board notes that the earliest claim was filed in April 1997. See VA 21-526 Veterans Application for Compensation or Pension entered in ereader in April 1997. As discussed, there was no mention of coronary heart disease at that time or in any of the statements submitted during the appeal of issues denied in the subsequent August 1997 rating decision. Prior documentation suggests the Veteran's participation in the Agent Orange Registry since at least 1981 but no there is no evidence of intent on his part to file a claim of service connection for heart disease at any time during the 1980s. Given this record, and the speculative nature of his statement during the hearing, the Board must conclude that there is no credible evidence of a claim for heart disease having been submitted at any time during the 1980s. Although the Veteran has generally argued that his effective date should be earlier than April 29, 2003 because he was treated prior to that date, a claim, rather than a medical record, must be filed in order for any type of benefit to be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). As it is the "unequivocal command" of 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore, Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999), the RO granted the earliest effective date for a grant of service connection for coronary artery disease that the law allows. The exact date on which entitlement arose need not be ascertained in order to conclude that the April 29, 2003, date selected by the RO, is the earliest possible effective date here. If entitlement arose prior to April 29, 2003, then the date of claim would be the later of the two, and hence the correct effective date is provided by 38 C.F.R. § 3.400(b)(2). Moreover, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra, Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is simply no legal entitlement to an earlier effective date for the award of service connection for coronary artery disease. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, given the governing legal authority, based on these regulations, the effective date has been appropriately assigned as the date of claim. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to April 29, 2003, for the grant of service connection for coronary artery disease. Therefore, the Veteran's claim for an earlier effective date for the award of service connection for coronary artery disease must be denied. The Board has considered the Veteran's assertion that he is entitled to an effective date reflecting his diagnosis of coronary artery disease in 1987. VA has awarded April 29, 2003 as the current effective date. The record does not show that he had a pending claim of service connection for coronary artery disease between May 1989 and April 29, 2003. The record also does not show that the Veteran had a claim of service connection for coronary artery disease denied between September 1985 and May 1989. Furthermore, his claim was received decades (and not within a year) following his separation from service. Consequently, the liberalizing provisions under Nehmer do not apply in the instant case. Although VA treatment records show that the Veteran had a diagnosis of coronary artery disease as early as 1987, the diagnosis itself does not qualify as an informal claim for service connection, as it does not identify service connection for coronary artery disease as a benefit sought. As previously discussed, the effective date of an award of service connection is not based on the earliest medical evidence showing a diagnosis of the disability, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Board is bound by governing law and regulations, and has no authority to award benefits not authorized by the governing law. Because the Veteran is not shown to have filed a formal or informal application for service connection for coronary artery disease prior to April 29, 2003, VA is precluded from granting an effective date for the award of service connection for coronary artery disease prior to this date. Hence, an earlier effective date in accordance with liberalizing law or the Nehmer guidelines is not warranted. See 38 C.F.R. § 3.816(c)(1), (c)(2). ORDER An effective date prior to April 28, 2010, for the grant of service connection for coronary artery disease is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs