Citation Nr: 1702381	
Decision Date: 01/27/17    Archive Date: 02/09/17

DOCKET NO.  12-27 533A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to an effective date prior to June 29, 2001 for the award of service connection for coronary artery disease (CAD).


REPRESENTATION

Veteran represented by:	Jeany Mark, Attorney-at-Law


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran had active service from October 1967 to May 1970, February 1972 to February 1975, and June 1975 to March 1977.  He served in Vietnam from May 1968 to May 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for CAD.

VA assigned an effective date of June 29, 2001 for the service connection grant, and the Veteran appealed.  The Board denied the Veteran's appeal in February 2015.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a May 2016 Partial Joint Motion for Remand (PJMR), the Court, in a May 2016 Order, vacated the Board's decision with respect to the above denial and remanded the matter to the Board.

Of note, in the February 2015 decision, the Board remanded two issues for additional development, entitlement to higher initial ratings for coronary artery disease rated at 10 percent from June 29, 2001 and at 60 percent from August 1, 2005 and entitlement to an effective date prior to August 1, 2005 for the award of special monthly compensation at the housebound rate.  To date, it does not appear that the directed development has been accomplished.  This should be done.

VA granted the Veteran a total disability rating based on individual employability due to a service-connected disability, effective April 9, 1999.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam from May 1968 to May 1970 and has a covered herbicide disease.  

2.  VA did not receive a formal or informal claim for entitlement to service connection for CAD prior to June 29, 2001.  

3.  The earliest evidence of the Veteran's CAD dates from 1995.  


CONCLUSION OF LAW

The criteria for an effective date prior to June 29, 2001 for the award of service connection for coronary artery disease are met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

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) (2014).

VA assigned an effective date of June 29, 2001 for the service connection grant, and the Veteran appealed.  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Nevertheless, the Board finds that a May 2011 letter fully satisfied the notice requirements in this case and addressed the downstream elements of service connection including effective date.  In addition, it is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA.  

The RO has obtained service, VA, and private treatment records, and these records have been associated with the claims file.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  There is no indication that any additional, pertinent records are outstanding and not associated with the claims file; and neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the effective claim that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Merits Analysis

In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).

Some exceptions to 38 C.F.R. § 3.400 exist.  First, if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.  Moreover, if a claim is reviewed, upon the Veteran's request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997).

A second exception to the regulations regarding effective dates for disability compensation involves those veterans who qualify as eligible under 38 C.F.R. § 3.816.  See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989).  Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a "covered herbicide disease."  See 38 C.F.R. § 3.816(b).

The Board finds that because service connection for CAD was granted based on the Veteran's presumed exposure to herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as is contemplated under 38 C.F.R. § 3.816(b).

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.  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, which in this case is August 31, 2010.  In these situations, the effective date of the award will be the later of the date VA received such claim or the date the disability arose.  38 C.F.R. § 3.816(c)(1), (c)(2). 

VA added IHD as a presumptive disability on August 31, 2010.  Pursuant to 38 C.F.R. § 3.309(e), IHD includes CAD.  As such, the issue is whether VA received a claim for CAD between May 3, 1989 and August 31, 2010.

The Nehmer Training Guide (NTG), which VA published in 2011, is instructive here.  Specifically, the NTG cites multiple forms a claim can take for Nehmer purposes. (p. 18-19).  Of particular importance is the following passage:

It is not the case that medical records alone constitute a claim for Nehmer purposes.  However, it is a rule that if, at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now covered condition (e.g., IHD), then the condition is considered to have been part of the previously denied claim.  It may help to think about it this way: If a presumption of service connection for IHD existed at the time of a prior RO decision on a different disability, would VA have inferred and granted [service connection] for IHD because it then had evidence of the disease?  If so, then we assume for Nehmer purposes, that the prior claim included a claim for IHD, even if it was not expressly claimed at the time.  This is what equates to medical records confirming a diagnosis of a presumptive disease qualifying as a claim for Nehmer purposes.  (p. 19; emphasis in original).

The Veteran, through his attorney, argues that an effective date earlier than June 29, 2001, is warranted for the award of service connection for CAD.  The Veteran, through his attorney, advocates for multiple dates, the earliest of which is September 1, 1995, as detailed in a May 2014 statement.  The Board does not need to address the specific arguments, as the finding of a VA examiner in February 2009 is dispositive.

In the aforementioned compensation examination report, the examiner found that "a formal diagnosis of diabetes mellitus type 2 was made in 2002," and the Veteran's "CAD preceded his diabetes mellitus by some seven years," i.e., 1995.  Notably, the examiner did not identify the specific treatment records upon which he made these two findings, but he noted he reviewed the Veteran's "very large" claims file. 

The Veteran did not file a claim for service connection for CAD, either formal or informal, prior to June 29, 2001.  However, he filed a formal claim for service connection for a low back disability which VA received on April 25, 1996.  This date is critical, as the NTG explains:

[Medical records] do not constitute a claim by themselves, but if [VA has] such medical records at the time [VA receives] a separate [service connection] claim, then the condition shown by the medical records is part of that claim.  Accordingly, for effective-date purposes, they should be considered part of whatever claim was the subject of the rating decision.  (p. 19-20; emphasis in original)

Applying the two NTG excerpts, the Board finds that: 1) a medical provider first diagnosed the Veteran with CAD in 1995, and 2) the 1996 back claim is the first claim he filed with VA subsequent to the CAD diagnosis.  In developing the back claim, which VA subsequently granted in 2011, VA received medical records showing a diagnosis of CAD.  The NTG cites an example which demonstrates why the timing of the receipt of these records is immaterial:

The Veteran filed a claim for service connection for a psychiatric condition in 1990.  In developing the claim, VA receives medical records showing a diagnosis of IHD.  VA denies the claim in 1991.  Under [Nehmer] footnote 1, IHD is deemed part of the 1990 claim, and the effective date may be the later of the date of that claim or date disability arose.  This instruction applies if the IHD records were incorporated into the record after the psychiatric was originally adjudicated; if for example, the claimant appealed that issue and submitted the IHD records in the course of the appeal.  (p. 20).

Given the foregoing, the effective date for the Veteran's grant of CAD is the date VA received the claim or the date entitlement arose, whichever is later.  Applying the NTG to the facts above, VA is deemed to have received the Veteran's CAD claim on April 25, 1996.  As this date is later than the date entitlement arose - 1995 for the diagnosis of CAD - this is the effective date.


ORDER

An effective date of April 25, 1996, for the award of service connection for CAD is granted, subject to the laws and regulations governing the award of monetary benefits. 

____________________________________________
MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs