Citation Nr: 1800070 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 16-05 705A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date earlier than August 25, 2006, for a grant of service connection for ischemic heart disease. 2. Entitlement to an initial rating in excess of 60 percent for ischemic heart disease prior to March 20, 2009. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to the Veteran's service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1965 to January 1968, to include service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for ischemic heart disease with a 60 percent evaluation effective November 1, 2006 and a 100 percent evaluation effective March 20, 2009. In a November 2011 rating decision, the RO granted service connection for ischemic heart disease with a 60 percent evaluation effective August 25, 2006. In September 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an initial rating in excess of 60 percent for ischemic heart disease prior to March 20, 2009 and entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran filed a service connection claim for diabetes mellitus on August 25, 2006. 2. The Veteran did not submit a claim, either formal or informal, for service connection for ischemic heart disease prior to August 25, 2006. 3. The Veteran is a Nehmer class member. CONCLUSION OF LAW Entitlement to an effective date prior to August 25, 2006, for the grant of service connection for ischemic heart disease is not warranted. 38 U.S.C. §§ 1154(a), 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.816, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that an effective date prior to August 25, 2006 is warranted for ischemic heart disease. Specifically, the Veteran's representative asserts that the effective date of the award should be April 14, 2004 at the latest, when the VA treatment records show the VA medical center was informed of the Veteran's coronary artery bypass grafting procedure, and December 2002, at the earliest, when the coronary bypass, artery bypass graft was completed at Aultman Hospital. See Board hearing transcript, p. 15; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). By way of background, the Veteran filed a claim for service connection for diabetes mellitus, type II, due to herbicide exposure on August 25, 2006. In a January 2007 rating decision, the RO granted service connection for diabetes mellitus, type II effective August 25, 2006. On August 16, 2010, the Veteran filed a claim for service connection for coronary artery disease/ ischemic heart disease. A February 2011 rating decision granted service connection for ischemic heart disease associated with herbicide exposure with a 60 percent evaluation effective November 1, 2006 and an evaluation of 100 percent effective March 20, 2009. In a November 2011 rating decision, the RO granted service connection for ischemic heart disease with a 60 percent evaluation effective August 25, 2006. VA has promulgated special rules for the effective dates for the award 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 Department of Veterans Affairs. 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." 38 C.F.R. § 3.816. According to 38 C.F.R. § 3.816(b)(2) 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 pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. Here, the Veteran served in the Republic of Vietnam during the Vietnam War era and has a diagnosis of coronary artery disease. Accordingly, the Board concludes that the Veteran is a "Nehmer class member" as defined in the law. 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; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(3). If a class member's claim for disability for the covered herbicide disease was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law, as in this case, 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. 38 C.F.R. § 3.816(c)(2). The Veteran filed his original claim for diabetes mellitus on August 25, 2006. The medical evidence shows the Veteran's ischemic heart disease arose prior to August 25, 2006; see private treatment records from Cardiovascular Consultants Inc., Aultman Hospital, and VA treatment records. However, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). The effective date is not the date the disability arose, but rather the date the claim was received by VA. Accordingly, the effective date is August 25, 2006, the date of receipt of the Veteran's claim for service connection for diabetes mellitus, type II, secondary to herbicide exposure. There is no evidence in the record that a claim was received prior to August 25, 2006 that relates to any disabilities that could reasonably be construed as an Agent Orange-related disability affected by Nehmer. Therefore there is no basis for assigning an effective date for service connection for ischemic heart disease prior to August 25, 2006. Consequently, the Veteran's claim for entitlement to an effective date earlier than August 25, 2006 for service connection for ischemic heart disease is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). ORDER Entitlement to an effective date prior to August 25, 2006, for service connection for ischemic heart disease is denied. REMAND At the September 2017 Board hearing, the Veteran's representative contends that there are additional private treatment records from Aultman between December 2006 and 2009 regarding the Veteran's ischemic heart disease that are not contained in the claims file. At that time, the representative requested to keep the record open for 60 additional days in order to obtain these additional records and the VLJ granted this request. Sixty days have passed and these records have not been associated with the claims file. Additionally, in September 2010, the Veteran submitted an Authorization and Consent to Release Information to the Department of Veterans Affairs, in which he reported treatment from a family doctor, Tom Shemory, to include treatment for his heart. After obtaining authorizations from the Veteran, private treatment records from Aultman and Dr. Tom Shemory, along with any additional, pertinent VA or private treatment records should be obtained and associated with the claims file. The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that he is unable to work due his service-connected ischemic heart disease and diabetes mellitus, type II. He reported he last worked full time on December 29, 2002 and he last worked as an engineering supervisor at the Timkin Company in 1992. He reported four years of college at Akron University. See September 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Veteran testified that he was not able to go back to work in 2006 due to daily fatigue, dizziness, and syncope. He testified that in his position as an engineering supervisor he supervised 12 people and he would not have been able to handle this due to his ischemic heart disease symptoms. See Board hearing transcript, p. 9, 11-12. The Veteran's claim for TDIU is inextricably intertwined with the pending claim for an initial rating in excess of 60 percent for ischemic heart disease prior to March 20, 2009. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. After obtaining authorizations from the Veteran, request all outstanding treatment records from Aultman and Dr. Tom Shemory. The AOJ must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Request that the Veteran identify any additional outstanding VA or private treatment records pertaining to his claim. Take appropriate measures to obtain copies of any outstanding records of pertinent VA or private medical treatment the Veteran identifies. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his ischemic heart disease between August 25, 2006 and March 20, 2009 and the impact of the condition on his ability to work. 4. Then, readjudicate the appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs