Citation Nr: 18139823 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 18-17 775 DATE: October 1, 2018 ORDER Entitlement to an effective date earlier than August 31, 2010 for the award of service connection for ischemic heart disease is denied. Entitlement to an initial 100 percent rating for ischemic heart disease, from August 31, 2010 through January 24, 2012, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran filed a claim of service connection for ischemic heart disease in February 2011. 2. Ischemic heart disease was added to the list of diseases subject to presumptive service connection for a veteran exposed to certain herbicide agents, effective August 31, 2010. 3. There is no evidence of any unadjudicated formal or informal claim of service connection for cardiac disability prior to August 31, 2010. 4. During the period from August 31, 2010 through January 24, 2012, the evidence is at least evenly balanced as to whether the Veteran’s ischemic heart disease resulted in a metabolic equivalents (METs) level of 3 or less. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 31, 2010 for the award of service connection for ischemic heart disease are not met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.114(a), 3.155 (in effect prior to March 24, 2015), 3.400, 3.816. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial 100 percent rating for ischemic heart disease, from August 31, 2010 through January 24, 2012, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.100, 4.104, Diagnostic Code (DC) 7017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1966, which includes service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) from an August 2011 rating decision. In April 2012, the agency of original jurisdiction (AOJ) granted a 100 percent rating for ischemic heart disease, from January 25, 2012. As for characterization of the issues on appeal, the Board included the single issue of entitlement to an effective date earlier than January 25, 2012 for the award of service connection and a 100 percent disability rating for ischemic heart disease in an April 2016 remand, and this issue was remanded for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), now codified at 38 C.F.R. § 19.9 (c). An SOC was issued in February 2018, the Veteran submitted a substantive appeal (VA Form 9) later that same month, and the issue was certified to the Board as it was characterized in the Board’s April 2016 remand. The Board points out, however, that the Veteran timely appealed the August 2011 rating decision which awarded service connection for ischemic heart disease and he essentially contended in his August 2012 notice of disagreement that he is entitled to both an earlier effective date for the award of service connection for ischemic heart disease and an earlier effective date for the award of a 100 percent rating for that disability. The grant of any compensation benefit necessarily includes implementation of an award and the selection of an effective date, since no award is granted in a legal vacuum. Here, the Board has bifurcated and recharacterized the appeal as including the separate issues of entitlement to an earlier effective date for the award of service connection for ischemic heart disease and entitlement to a higher initial rating for ischemic heart disease. The Board has not included the separate issue of entitlement to an earlier effective date for the award of a 100 percent rating for ischemic heart disease because, in essence, the AOJ granted a staged rating for the service-connected cardiac disability by way of the April 2012 decision. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings). The Board’s adjudication of the higher initial rating issue will include consideration of, among other things, whether a higher rating for the service-connected cardiac disability is warranted at any time prior to the January 25, 2012 effective date for the award of a 100 percent rating for the service-connected cardiac disability. As the Veteran has already been granted the full benefit sought for ischemic heart disease during the entire period since January 25, 2012, his appeal for a higher initial rating for this disability during that period will not be addressed by the Board. Lastly, the Board notes that the issues of entitlement to an earlier effective date for the award of Dependents’ Educational Assistance benefits, entitlement to service connection for an eye condition manifested by loss of vision, entitlement to higher ratings for bilateral peripheral neuropathy of the upper and lower extremities, and entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities were remanded by the Board in April 2016 for further development. These matters have not yet been returned to the Board for further adjudication and will not be addressed at this time. I. Earlier Effective Date 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 later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under 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. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). On December 22, 1987, the United States District Court for the Northern District of California certified a class consisting of all current or former service members, or their next of kin (a) who are eligible to apply to, who will become eligible to apply to, or who have an existing claim pending before VA for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin or (b) who have had a claim denied by the VA for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin. Nehmer v. United States Veterans’ Administration, 118 F.R.D. 113, 116, 125 (N.D. Cal. 1987) (Nehmer I). On May 3, 1989, the district court invalidated a portion of former 38 C.F.R. § 3.311a, pertaining to the adjudication of claims based on exposure to herbicides containing dioxin, holding that the regulation was based on an incorrect interpretation of the requirements of the Dioxin Act. Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404, 1423 (N.D. Cal. 1989). The court also voided all benefit denials made under the invalidated regulation and remanded the matter to VA for further proceedings not inconsistent with the court’s opinion. Id. VAOPGCPREC 15-95 (1995). The stipulation and order entered into in Nehmer applies where (1) a claim was denied under regulations voided by the court in Nehmer; (2) a claim was filed after the date of the court’s decision and before issuance of the new regulations; or (3) a claim was pending at the time of the issuance of current regulations providing for presumptive service connection for disabilities due to exposure to Agent Orange. Diseases Associated With Exposure to Certain Herbicide Agents. 59 Fed. Reg. 29,723, 29,724 (1994). The district court later clarified that the claims “made under” 38 C.F.R. § 3.311a (d) were those in which the disease or cause of death is later found-- under valid Agent Orange regulation(s)--to be service connected. Nehmer v. United States, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II); see Williams v. Principi, 310 F.3d 1374 (Fed. Cir. 2002). A “Nehmer class member” means either a Vietnam veteran who has a covered herbicide disease or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1). A “covered herbicide disease” means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.816 (b)(2). Hence, a covered herbicide disease includes ischemic heart disease. See 38 C.F.R. § 3.309 (e). As applicable to this case, if the Nehmer 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. 38 C.F.R. § 3.816 (c)(2). Ischemic heart disease was added to the list of diseases subject to presumptive service connection for a veteran exposed to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the award shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) (“plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation”), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). Entitlement to an effective date earlier than August 31, 2010 for the award of service connection for ischemic heart disease For the following reasons, that an effective date earlier than August 31, 2010 for the award of service connection for ischemic heart disease is not warranted. The Veteran served in Vietnam and service connection was awarded for ischemic heart disease on the basis of his exposure to herbicide agents in Vietnam. Hence, he is a “Nehmer class member.” The remaining question is whether a claim of service connection for cardiac disability was received prior to August 31, 2010, so as to warrant an earlier effective date for the award of service connection for ischemic heart disease. The Veteran filed his claim of service connection for ischemic heart disease in February 2011. This claim was received by VA on February 11, 2011. Medical records obtained in support of this claim confirmed a diagnosis of ischemic heart disease. Hence, in the August 2011 rating decision, the AOJ awarded service connection for ischemic heart disease and assigned an effective date of August 31, 2010, the effective date of the regulation that added ischemic heart disease to the list of diseases subject to presumptive service connection for a veteran exposed to certain herbicide agents. See 38 C.F.R. § 3.114 (a). There is no evidence that the Veteran submitted any formal or informal claim of service connection for cardiac disability at any time prior to August 31, 2010 and the Veteran has not contended that any such earlier claim was submitted. Moreover, the other provisions pertaining to the assignment of effective dates for covered herbicide diseases of Nehmer class members are inapplicable because there is no evidence that VA ever denied compensation for cardiac disability and no claim of service connection for cardiac disability was ever filed prior to the currently assigned effective date. The Board acknowledges that medical records dated prior to August 31, 2010 indicate that the Veteran was treated for cardiac problems. The provisions of former 38 C.F.R. § 3.157 (b)(1) (in effect prior to March 24, 2015) provide that 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. However, 38 C.F.R. § 3.157 (b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.” MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA). This regulation is therefore not for application in connection with the instant appeal. For the foregoing reasons, there is no evidence of any unadjudicated formal claim of service connection for cardiac disability prior to August 31, 2010, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, August 31, 2010 is the earliest possible effective date. See 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.114 (a), 3.400. Therefore, there is no basis upon which to justify granting an effective date earlier than August 31, 2010 and the appeal for an earlier effective date for the award of service connection for ischemic heart disease must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. II. Higher Initial Rating Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be “staged.” Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an initial rating higher than 30 percent for ischemic heart disease, prior to January 25, 2012 The Veteran’s ischemic heart disease is rated under 38 C.F.R. § 4.104, DC 7017. Under DC 7017, a 100 percent rating is warranted for 3 months following hospital admission for coronary bypass surgery. Thereafter, the following rating criteria apply. A 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. 38 C.F.R. § 4.104, DC 7017. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted where there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The provisions of 38 C.F.R. § 4.100 direct that even if the requirements for a 30 percent rating are met with regard to various cardiovascular system disabilities (including ischemic heart disease), METs testing is required in all cases except: (1) when there is a medical contraindication, (2) when the left ventricular ejection fraction has been measured and is 50 percent or less, (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, or (4) when a 100 percent rating can be assigned on another basis. 38 C.F.R. § 4.100. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran manifested cardiac symptoms of the type and extent, frequency, and/or severity, as appropriate to warrant an initial 100 percent rating for ischemic heart disease during the entire period from the August 31, 2010 effective date of service connection through January 24, 2012. A June 2010 VA internal medicine note reflects that the Veteran reported a one-month history of chest pain which woke him up while sleeping. The pain occurred on a weekly basis, but had become more prominent the night before the June 2010 evaluation. The pain was 8/10 in intensity, precordial, burning in quality, radiated from the right side of the chest to the left side, and was associated with a bloating sensation and belching. The pain lasted for 30 minutes at a time and improved on its own and with positional changes. There were no heart palpitations, nausea, vomiting, or shortness of breath. Examination revealed that the Veteran’s heart rate and rhythm were both regular and that there were no audible murmurs. The Veteran was diagnosed as having atypical chest pain. The report of a June 2011 VA cardiac examination indicates that the Veteran experienced a myocardial infarction and underwent coronary bypass surgery in 2000. He also underwent percutaneous coronary intervention in 2004. He had not undergone any heart transplant or implantation of any cardiac pacemaker or cardioverter defibrillator. He did not experience congestive heart failure. A diagnostic exercise test was not conducted, but the examiner who conducted the June 2011 examination did not provide any explanation for why such testing was not conducted. Rather, the examiner estimated that a workload of greater than 5 METs, but not greater than 7 METs, would result in fatigue and dizziness. There was no evidence of cardiac hypertrophy or dilatation. An echocardiogram conducted in July 2011 revealed a left ventricular ejection fraction of greater than 55 percent. The Veteran was diagnosed as having ischemic heart disease. This disability impacted his ability to work in that he reported fatigue and dizziness with moderate to heavy exertion. An August 2011 “Ischemic Heart Disease” Disability Benefits Questionnaire (DBQ) (VA Form 21-0960A-1) reflects that the Veteran required continuous medication for his cardiac disability. He had not experienced any myocardial infarction since 2000 and had not undergone any cardiac surgical procedures since his percutaneous coronary intervention in 2004. He did not experience congestive heart failure. A diagnostic exercise test was not conducted, but the physician who completed the August 2011 DBQ did not provide any explanation for why such testing was not conducted. Rather, the examiner estimated that a workload of greater than 5 METs, but not greater than 7 METs, would result in fatigue and dizziness. There was no evidence of cardiac hypertrophy or dilatation and the results of the July 2011 echocardiogram were again noted as showing a left ventricular ejection fraction of greater than 55 percent. A diagnosis of ischemic heart disease was provided. This disability resulted in fatigue and dizziness with moderate to heavy exertion. A September 2011 VA discharge summary reflects that the Veteran presented to the emergency room on September 5, 2011 due to chest pain when he woke up from sleep. The pain was sharp, 8/10 in intensity, lasted for approximately 3 hours at a time, was located retrosternally, and radiated to the left arm, back, and left side of the neck and jaw. There was no associated palpitations, nausea, vomiting, diaphoresis, or shortness of breath. The Veteran did not use any medications for his symptoms. The Veteran was diagnosed as having acute coronary syndrome, unstable angina. A VA “Ischemic Heart Disease” DBQ dated on January 25, 2012 reflects that the Veteran’s cardiac disability required the continuous use of medication. He underwent a percutaneous coronary intervention in February 2011, but had not experienced any myocardial infarction or undergone any cardiac surgery since his coronary bypass surgery in 2000. The Veteran did not experience any congestive heart failure. The physician who completed the DBQ appears to note that a diagnostic exercise test was conducted in June 2011, but the physician then provided an estimated METs level of 1 to 3 METs which resulted in dyspnea, fatigue, and angina. An echocardiogram revealed a left ventricular ejection fraction of greater than 55 percent. The Veteran was diagnosed as having ischemic heart disease. This disability limited his daily activities. As a preliminary matter, the Board points out the report of the June 2011 VA examination and the August 2011 DBQ reflect that no exercise tolerance tests were conducted during the examinations, despite the fact that none of the exceptions in 38 C.F.R. § 4.100 were evident in the examination reports. Moreover, the examiners who conducted these examinations did not provide any explanation as to why such testing was not conducted. The January 2012 DBQ is the only examination report which appears to reflect that such testing may have been conducted. Nevertheless, the findings documented in the January 2012 DBQ support a 100 percent rating under DC 7017, regardless of whether any actual testing was conducted. In light of the fact that exercise tolerance tests were not conducted at the time of the June and August 2011 examinations, the fact that the January 2012 DBQ includes findings supportive of a 100 percent rating, and the fact that there is no evidence that the Veteran’s cardiac symptoms suddenly worsened in January 2012 (as evident by the fact that the June 2010 VA internal medicine note and the September 2011 VA discharge summary both document similar symptoms of chest pain that occurred while the Veteran was sleeping/inactive and woke him up from sleeping), the Board finds that the evidence is at least evenly balanced on the question of whether the METs results reported on the January 2012 DBQ are reflective of the cardiac symptoms experienced by the Veteran during the entire period from the August 31, 2010 effective date of service connection through January 24, 2012. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hence, an initial 100 percent rating for ischemic heart disease under DC 7017 is warranted for the entire period from August 31, 2010 through January 24, 2012. Despite the fact that a definitive METs level supportive of a 100 percent rating was not provided until January 2012, an effective date should not be assigned mechanically based solely on the date that symptoms are objectively documented. Rather, all of the facts should be examined to determine the date that a veteran’s disability first manifested to a certain degree of severity. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In light of the medical evidence of record and the Veteran’s reported history, the Board finds that an initial 100 percent rating for ischemic heart disease, during the entire period from the August 31, 2010 effective date of service connection through January 24, 2012, is granted. Thus, the Board has granted the benefit sought in full. (Continued on the next page)   The Board further finds that, in conjunction with the appeal for a higher initial rating for ischemic heart disease, other than the issue of entitlement to a TDIU which has been remanded to the AOJ and is currently in remand status, the Veteran has neither raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel