Citation Nr: 1804542 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-17 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than November 1, 2004, for the grant of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, for purposes of accrued benefits. ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from September 1965 to September 1968, including service in the Republic of Vietnam. The Veteran passed away in March 2012. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which awarded service connection for coronary artery disease, status post coronary artery bypass graft and stenting, as 60 percent disabling, effective as of November 1, 2004. Jurisdiction of the matter is now with the RO in Chicago, Illinois. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam War, and therefore is presumed to have had in-service exposure to herbicides, including Agent Orange. 2. The appellant is the surviving spouse of the Veteran for VA purposes. 3. At the time of his death in March 2012, the Veteran had a pending claim for entitlement to an earlier effective date for his service-connected coronary artery disease, status post coronary artery bypass graft and stenting; his surviving spouse timely filed a claim for accrued benefits. 4. The Veteran's claim that has been construed as a claim for entitlement to service connection for coronary artery disease, status post coronary artery bypass graft and stenting, was received no earlier than November 1, 2004. 5. Service connection for coronary artery disease, status post coronary artery bypass graft and stenting, was granted in a November 2010 rating decision, effective as of November 1, 2004. 6. 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 or any other heart condition, prior to November 1, 2004. CONCLUSION OF LAW The criteria for an effective date prior to November 1, 2004, for the award of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, for purposes of accrued benefits, have not been met. 38 U.S.C. § 5110, 5107 (West 2014); 38 C.F.R. §§ 3.160, 3.400, 3.816, 3.1010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014). The appeal in this case arises from the initial grant of service connection for the Veteran's coronary artery disease. The United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The appellant has not 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). VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claim being adjudicated at this time. II. Accrued Benefits Accrued benefits are periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C. § 5121 (West 2014); 38 C.F.R. § 3.1000 (2017). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the Veteran had a claim pending at the time of death, (iii) the Veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the Veteran's death. 38 U.S.C. §§ 5101(a), 5121 (West 2014); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). Only evidence of record at the time of the Veteran's death is considered in adjudicating a claim for accrued benefits, as the Board is prohibited from considering medical evidence received after the date of the Veteran's death. 38 C.F.R. § 3.1000. There is an exception for outstanding service treatment records or VA records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4). See Hayes v. Brown, 4 Vet. App. 60, 60-61 (1993). The Veteran passed away in March 2012. At the time of his death, the claim listed on the title page of this decision was pending. The appellant filed an Application for Dependency, Indemnity, and Compensation (DIC), Death Pension and Accrued Benefits in April 2012. As the appellant has standing to file a claim for accrued benefits, the Veteran had a claim pending at the time of death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claim if he had not died. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1000. Initially, the Board notes it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. III. Earlier Effective Date Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopen) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A claim is defined by regulation 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 demonstrates intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Such an informal claim must identify the benefit sought. Id. With respect to the phrase "the date entitlement arose," the Court has stressed what that phrase does not mean. In McGrath v. Gober, 14 Vet. App. 28, 35 (2000), the Board had found the earliest date that a VA examiner had diagnosed posttraumatic stress disorder as "the date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. The Court stressed that the date of the medical evidence itself is irrelevant where an initial service connection claim is pending, even if it was submitted over twenty years after the time period in question. The Court offered, under the circumstances of an original claim for service connection, the date that the veteran submitted the claim or the date the veteran was released from active service, whichever applies, ultimately controls the effective date for benefits. Id. This conclusion is borne out in Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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 claimant, it will be considered filed as of the date of receipt of the informal claim. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the general rule for effective dates. 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). 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. Effective August 31, 2010, VA added ischemic heart disease, to include coronary heart disease, to the list of presumptive diseases associated with herbicide exposure. 75 Fed. Reg. 53, 216 (Aug. 31, 2010); 38 C.F.R. § 3.309(e). It was noted in the Federal Register that VA may pay benefits for periods prior to the effective date in certain circumstances which are set forth in detail in 38 C.F.R. § 3.816(c) and (d), which implement a stipulation and various court orders in the Nehmer class action litigation. 75 Fed. Reg. 53, 216 (Aug. 31, 2010). The Board notes that 38 C.F.R. § 3.816 was revised to include ischemic heart disease as a covered herbicide disease. 78 Fed. Reg. 54, 766 (Sept. 6, 2013). 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. See 38 C.F.R. § 3.816(c)(1)-(3). Under 38 C.F.R. § 3.816(c)(2), if the class member's claim was received between May 3, 1989 and the effective date of the liberalizing law, 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 provided in paragraph (c)(3) of this section. See 38 C.F.R. § 3.816(c)(2). Paragraph (c)(3) provides that if the class member's claim was received within one year of his or her separation from service, the effective date of the award shall be the day following the date of separation from active service. 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). In the present case, the current effective date of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, is November 1, 2004, the date that the Veteran's claim that has been construed as a claim of service connection for this disability was received. Specifically, the Veteran stated in his November 2004 claim that men he knew did not experience the heart problems that he had early in his life, and that numerous exposures to Agent Orange could not have helped his health. Although the Veteran did not specifically indicate that he was claiming service connection for coronary artery disease in his November 2004 claim, the AOJ construed the Veteran's claim as a claim of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, on the basis of his presumed exposure to herbicides in Vietnam and the fact that his medical records indicated treatment for coronary artery disease. A private treatment record dated March 1995 reflects that the Veteran was diagnosed with coronary artery disease at that time. As noted above, ischemic heart disease, to include coronary artery disease, was added to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange during service effective August 31, 2010. The Board has considered the appellant's assertion that the Veteran is entitled to an effective date reflecting his diagnosis of coronary artery disease in 1995. The dispositive fact in this matter is the date when VA concedes that the Veteran first filed a claim seeking service connection for coronary artery disease. VA has identified November 1, 2004, as the date of the Veteran's claim for service connection for coronary artery disease. The record does not show that he had a pending claim of service connection for coronary artery disease between May 1989 and November 1, 2004. 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 private treatment records show that the Veteran had a diagnosis of coronary artery disease as early as 1995, 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 November 1, 2004, VA is precluded from granting an effective date for the award of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, 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 Entitlement to an effective date earlier than November 1, 2004, for the grant of service connection for coronary artery disease, status post coronary artery bypass graft and stenting, for purposes of accrued benefits, is denied. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs