Citation Nr: 18142300 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-54 815 DATE: October 15, 2018 ORDER Entitlement to effective date earlier than January 22, 2009 for service-connected coronary artery disease is denied. FINDING OF FACT On January 22, 2009, the Department of Veterans Affairs (VA) Regional Office received the Veteran’s informal claim for compensation for coronary artery disease; this represents the earliest date of a claim for compensation. CONCLUSION OF LAW The criteria for entitlement to effective date earlier than January 22, 2009 for the award of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1974. Generally, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date 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(b)(2)(i). For purposes of this claim, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. This 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. 38 C.F.R. § 3.155. An exception to the regulations regarding effective dates for disability compensation involves members of the Nehmer class under 38 C.F.R. § 3.816. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, 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. In accordance with Nehmer and its implementing regulation, if VA denied compensation for the same covered herbicide disease in a decision issued 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, which in this case is August 31, 2010. See 38 C.F.R. § 3.816(c)(1)-(3). In such circumstances, the effective date of the award will be the date VA received the claim, unless the claim was filed within a year of separation from service or some other exception is applicable. See 38 C.F.R. § 3.816(c). If the requirements of 38 C.F.R. § 3.816 (c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). A Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” Id. 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 pursuant to the Agent Orange Act of 1991, Public Law 102-4. The Veteran filed an original claim seeking entitlement to service connection for a heart condition that was received on January 31, 2014. A July 2014 decision granted service connection for coronary artery disease based on the presumption of exposure to Agent Orange. An effective date of January 22, 2009, was assigned. The RO explained that at the Veteran had filed a claim on January 22, 2009, for increased compensation for a left disability, there was medical evidence showing a diagnosis of coronary artery disease. There is no indication from review of the record that he submitted a formal or informal claim for service connection for a heart disability prior to January 22, 2009. There has been no specific contention to the contrary. The Veteran asserts that he attempted to provide VA with treatment records that showed he was diagnosed with angina and coronary heart disease in 1987, he has never asserted that he attempted to file a claim. See April 2015 Notice of Disagreement and October 2016 VA Form 9. There is no indication the Veteran filed for and was denied compensation for a heart disability between September 25, 1985, and May 3, 1989. There is likewise no indication that he had a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law that added coronary artery disease to the list of diseases presumptively associated with herbicide agent exposure, which was August 31, 2010. Accordingly, the effective date of the award of service connection for coronary heart disease shall be determined in accordance with 38 C.F.R. § 3.114 and 3.400. VA regulation 38 C.F.R. § 3.400 provides that the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. Review of the medical evidence in this case indicates that the Veteran had been diagnosed with a heart disability prior to January 31, 2014, the date on which his claim for service connection was received, and prior to January 22, 2009, the effective date for service connection for coronary artery disease. As the date of receipt of claim is later than the date entitlement arose, the Veteran is not entitled to an effective date earlier than January 22, 2009, under the provisions of 38 C.F.R. § 3.400. The only remaining avenue for an earlier effective date in this case is through 38 C.F.R. § 3.114. Under this regulation, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for retroactive payment, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In this case, the medical evidence reflects that the Veteran was diagnosed with angina and coronary artery disease in 1987. Ischemic heart disease, to include coronary artery disease, was added to the list of diseases subject to service connection on a presumptive basis effective August 31, 2010. The provisions of 38 C.F.R. § 3.114 do not apply. Accordingly, the Board finds that the earliest possible effective date for the award of service connection is January 22, 2009, and that the claim for an earlier effective date must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel