Citation Nr: 18140319 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-18 291 DATE: October 2, 2018 ORDER The claim of entitlement to an effective date earlier than June 18, 2005, for the grant of service connection for atherosclerotic vascular disease is denied. FINDING OF FACT The record does not show the Veteran had any form of ischemic heart disease earlier than June 18, 2005. CONCLUSION OF LAW The criteria are not met for an effective date earlier than June 18, 2005, for the grant of service connection for atherosclerotic vascular disease. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to May 1979. The Veteran died in December 2009, and the Appellant is his surviving spouse. In a March 2016 decision, the Board denied this claim for an earlier effective date. The Appellant appealed that decision to the Court of Appeals for Veterans Claims. The Court vacated this denial, and remanded the issue to the Board for a more detailed explanation for relying upon the March 2014 VA examination, which did not address the findings of a May 2003 echocardiogram, or to obtain a medical opinion. In November 2017, the Board requested a medical opinion from a VA physician. In January 2018, the opinion was received from a cardiologist. The Appellant was forwarded a copy of the opinion in March 2018, to which she has not responded. The Board finds this medical opinion is adequate, as it addresses the Board’s request and the relevant evidence, and is supported with explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Entitlement to an effective date earlier than June 18, 2005, for the grant of service connection for atherosclerotic vascular disease. The effective date of service connection for atherosclerotic vascular disease has been assigned as June 18, 2005, by the regional office. The Appellant has appealed for an even earlier effective date, asserting that records from May 2003 document that the Veteran had ischemic heart disease at that time. In general, the effective date of an award of disability compensation, in conjunction with a grant of service connection, shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective dates of certain awards of service connection for covered herbicide diseases are governed pursuant to the orders of a United States district court in the class-action case arising from Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. U. S. Veterans’ Admin., 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). The covered diseases are noted to be those found in 38 C.F.R. § 3.309(e), excepting chloracne. 38 C.F.R. § 3.816(b)(2). Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). The effective date of an award of service connection for ischemic heart disease under the provisions of 38 C.F.R. § 3.309(e) is governed by the Nehmer provisions. See id., at 53203. Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim 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 except as otherwise provided in paragraph (c)(3) of this section, which pertains to claims filed within one year from the date of separation from service. See 38 C.F.R. § 3.816(c)(2), (c)(3). Thus, under the Nehmer effective date provisions, the Board must determine whether he had ischemic heart disease prior to July 30, 2004, when he first claimed service connection for it. As mentioned, the Appellant has pointed to a May 2003 echocardiogram. The results showed mild left atrial enlargement, normal left ventricular systolic function, ejection fraction of about 65-70 percent, no regional wall abnormality, moderate concentric left ventricular hypertrophy, mild mitral regurgitation and tricuspid regurgitation, small anterior pericardial effusion with no signs of pericardial tamponade, and no thrombus, vegetation, or intracardiac mass. The January 2018 medical opinion that addresses this evidence, from a VA cardiologist, indicated that the May 2003 record did not show acute myocardial ischemia or acute myocardial infarction. Although he was showing symptoms suggesting ischemia (including right-sided weakness), laboratory results were normal (his troponin I level was normal) and the echocardiogram did not show cardiac ischemia. Indeed, it did not show wall motion abnormality, and it had normal systolic function with an ejection fraction of greater than 60 percent. The examiner noted that a November 2004 emergency room visit also showed no cardiac symptoms, no abnormal troponin I levels, and no abnormal echocardiogram. The examiner noted the Veteran did have cardiac risk factors, including hypertension, but that the evidence did not show that he had ischemic heart disease prior to June 2005. Based on the above, the Board does not find that an earlier effective date is warranted. As discussed, the effective date in a Nehmer claim will be the later of the date the claim for service connection was received by VA or the date the disability arose. Here, the date has been assigned as June 18, 2005, the date it was diagnosed, which is after the date of receipt of the claim. The VA examiner investigated whether the evidence as likely as not showed ischemic heart disease earlier, and he found it unlikely given the medical tests that were conducted at the time. The Board finds this medical evidence outweighs the Appellant’s assertions that he had ischemia earlier than June 2005. The Appellant has not presented any argument or evidence in response to the January 2018 medical opinion.   The preponderance of the evidence weighs against finding that his ischemia was present prior to his July 2004 claim, and under such circumstances, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, this claim must be denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson