Citation Nr: 1803546	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  12-17 345	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to an effective date prior to October 1, 2010 for the grant of service connection for peripheral arterial disease of the right lower extremity associated with coronary artery disease (CAD) status-post coronary artery bypass graft (CABG) with unstable angina.

2. Entitlement to an effective date prior to October 1, 2010 for the grant of service connection for peripheral arterial disease of the left lower extremity associated with CAD status-post CABG with unstable angina.

3. Entitlement to an initial rating in excess of 10 percent from September 29, 2006 to March 4, 2010, 30 percent from March 2010 to June 21, 2016, and 60 percent thereafter for service-connected CAD status post CABG with unstable angina.

4. Entitlement to an initial compensable rating for service-connected residual scar associated with CAD status post CABG with unstable angina.


REPRESENTATION

Veteran represented by:	American Legion
WITNESSES AT HEARING ON APPEAL

Veteran and his spouse


ATTORNEY FOR THE BOARD

E. Kunju, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1959 to June 1967, with 4 years of prior unverified service. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file.  

This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). Documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. At the September 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative that he wished to withdraw the claims of entitlement to increased initial ratings for service-connected CAD status-post CABG with unstable angina and residual scar associated with CAD status post CABG with unstable angina.

2. The Veteran's initial claim of entitlement to service connection for peripheral arterial disease (PAD) of the bilateral lower extremities was received by VA on October 1, 2010.

3. PAD was provisionally diagnosed in private medical records in April 2009 and definitely linked to a service-connected disability in a June 2011 VA examination.


CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal as to the issues of entitlement to initial increased ratings for CAD status post CABG with unstable angina and residual scar associated with CAD status post CABG with unstable angina have been met. 38 U.S.C. §7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for an effective date earlier than October 1, 2010, for the award of service connection for PAD of the left lower extremity is not met. 38 U.S.C. 
§§ 5101(a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400 (2017).

3. The criteria for an effective date earlier than October 1, 2010, for the award of service connection for PAD of the right lower extremity is not met. 38 U.S.C. 
§§ 5101 (a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.159, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Increased Ratings for CAD and Residual Scar Associated with CAD

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. 

At the September 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative stated that he wished to withdraw the claims of entitlement to an initial increased ratings for CAD status post CABG with unstable angina and for residual scar associated with CAD status post CABG with unstable angina. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and the appeal in this regard is dismissed.

Duties to Notify and Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or 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 September 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).  

Earlier Effective Dates

The Veteran seeks an effective date of April 14, 2009 for his service-connected peripheral arterial disease of the bilateral lower extremities. He claims that the effective date should be the date on which his private physician diagnosed peripheral arterial disease. 

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. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The date of entitlement 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. § 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, 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). 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). 

Additionally, with regard to compensation for disabilities for which service connection was granted on a secondary basis, the effective date can be no earlier than the date of the claim for service connection on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, a Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Secondary service connection is warranted where a disability is caused or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995).

April 2009 private medical records were received by the RO on March 1, 2010.  The private records noted suspected severe peripheral arterial disease.  The earliest such notation appears to be dated April 14, 2009.  An October 1, 2010 submission noted that the Veteran wished to claim for PAD.  In an April 2011 rating decision, the RO granted service connection for coronary artery disease (CAD) due to herbicide exposure during service.  The RO assigned an effective date of September 29, 2006 based on the date of claim.  

A June 20, 2011 VA examination was conducted.  The examiner diagnosed PAD and found that it was likely related to the Veteran's service-connected heart disability.  In a July 12, 2011 rating decision, the RO granted service connection for peripheral arterial disease of the right and left lower extremities as secondary to his already-service connected coronary artery disease, based upon the findings of the June 18, 2011 VA examination.  

The Board finds that the date of entitlement is June 18, 2011.  Although PAD was provisionally diagnosed in April 2009, it was not linked to the Veteran's service-connected heart disability until the June 2011 VA examination.  The Board finds that the date of claim is October 1, 2010.  There is nothing in the record that could be construed as an earlier claim for service connection for prostate cancer.  Although the Veteran submitted medical records showing a provisional diagnosis of PAD, no submission requested a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p).

Thus, the Board finds that the assigned effective date of October 1, 2010, is not the later of the date of claim and date of entitlement, as that date would be June 18, 2011.  But even if the date of entitlement were April 14, 2009, the later of those two dates is October 1, 2010.  Accordingly, no earlier date is for assignment. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


ORDER

The claim of entitlement to an initial increased rating for CAD status post CABG with unstable angina is dismissed. 
The claim of entitlement to an initial compensable rating for residual scar associated with CAD status post CABG with unstable angina is dismissed.
Entitlement to an effective date prior to October 1, 2010 for grant of service connection for peripheral arterial disease of the right lower extremity associated with coronary artery disease (CAD) status post coronary artery bypass graft (CABG) with unstable angina is denied.
Entitlement to an effective date prior to October 1, 2010 for grant of service connection for peripheral arterial disease of the left lower extremity associated with CAD status post CABG with unstable angina is denied. 




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


Department of Veterans Affairs