Citation Nr: 18142306 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 16-18 200 DATE: October 16, 2018 ORDER Entitlement to an initial disability rating in excess of 60 percent for ischemic heart disease is denied. Entitlement to an effective date earlier than December 3, 2012 for the assignment of service connection for ischemic heart disease is denied. FINDINGS OF FACT 1. The Veteran’s heart condition did not manifest in chronic congestive heart failure; a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or in left ventricular dysfunction with an ejection fraction of less than 30 percent. 2. The Veteran served in the Republic of Vietnam and began to manifest a heart condition presumably due to herbicide agents in the 1970s, and a regulation recognizing that presumption went into effect on August 31, 2010; and the Veteran first filed for service connection for a heart condition on December 3, 2013 and was granted service connection effective December 3, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 60 percent for ischemic heart disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). 2. The criteria for entitlement to an effective date earlier than December 3, 2012 for the assignment of service connection for a heart condition have not been met. 38 U.S.C. §§ 501, 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1949 to June 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho and a November 2015 rating decision of the RO in Baltimore, Maryland. The Veteran was notified of his right to testify at a personal hearing before the Board, but the Veteran declined. 1. Entitlement to an initial disability rating in excess of 60 percent for ischemic heart disease At issue is whether the Veteran is entitled to an initial disability rating in excess of 60 percent for ischemic heart disease. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. The Veteran first filed for service connection for a heart condition on December 3, 2013, and, in a June 2015 rating decision, the RO granted service connection and assigned a disability rating of 60 percent effective December 3, 2013. In a November 2015 rating decision, the RO revised the disability effective date to December 3, 2012. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s disability ratings are assigned pursuant to Diagnostic Code 7005. Under Diagnostic Code 7005, a disability rating of 60 percent is assigned for arteriosclerotic heart disease when there is more than one episode of acute congestive heart failure in the past year; a workload greater than three metabolic equivalents (METs) but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and a total disability rating is assigned when there is chronic congestive heart failure; or a workload of three 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. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran’s statements and treatment records indicate that the Veteran manifested heart symptoms throughout the period on appeal. The Veteran underwent a VA examination in June 2015. He reported shortness of breath, dizziness, and fatigue. The examiner indicated that the Veteran did not manifest congestive heart failure. The examiner indicated that a workload of greater than three and equal to or less than five METs resulted in dyspnea, angina, and dizziness. The examiner did not diagnose the Veteran with a valvular condition, and the results of an echocardiogram were normal. The Veteran underwent another VA examination in February 2016. He reported experiencing angina. The examiner indicated that the Veteran did not manifest congestive heart failure. The examiner indicated that a workload of greater than three and equal to or less than five METs resulted in dyspnea, angina, and fatigue. The examiner did not diagnose the Veteran with a valvular condition, and the examination did not contain evidence of an abnormal ejection fraction from an appropriate diagnostic tool such as an echocardiogram. A June 2018 echocardiogram indicated that the Veteran’s ejection fraction was 60 percent. The Veteran underwent another VA examination in June 2018. The Veteran reported chest pain and shortness of breath. The examiner indicated that the Veteran did not manifest congestive heart failure. The examiner indicated that a workload of greater than three and equal to or less than five METs resulted in dizziness and shortness of breath. The examiner indicated that the Veteran did not have a valvular condition, and the examiner indicated that the Veteran’s ejection fraction was 60 percent. The Veteran is not entitled to an initial disability rating in excess of 60 percent for ischemic heart disease. In order to meet the criteria for a disability rating in excess of 60 percent, the Veteran must manifest chronic congestive heart failure; a workload of three METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran did not manifest congestive heart failure during the period on appeal, and the Veteran’s ejection fraction and workload were always in excess of the criteria for a disability rating in excess of 60 percent. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 60 percent for ischemic heart disease. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating in excess of 60 percent for ischemic heart disease is denied. The Board has considered whether the issue of entitlement to a total disability rating due to individual unemployability (TDIU) has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the issue has not been raised by the record, because, in November 2015, the Veteran informed VA that he did not desire to pursue a claim for entitlement to TDIU. Additionally, the Veteran’s representative did not discuss a claim for TDIU in an October 2018 appellate brief. 2. Entitlement to an effective date earlier than December 3, 2012 for the assignment of service connection for ischemic heart disease At issue is whether the Veteran is entitled to an effective date earlier than December 3, 2012 for the assignment of service connection for ischemic heart disease. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date. The Veteran separated from service in 1970. The effective date of the regulation establishing that the Veteran’s heart condition was presumptively linked to exposure to herbicide agents was August 31, 2010. The Veteran first filed for service connection for a heart condition on December 3, 2013, and, in June 2015, the RO granted service connection an assigned an initial disability rating of 60 percent effective December 3, 2013. In a November 2015 rating decision, the RO revised the disability rating to be effective December 3, 2012. A VA request for information indicated that the Veteran served in the Republic of Vietnam, and the June 2015 rating decision indicated that the Veteran was assigned service connection based on th3e presumption of exposure to herbicide agents. Servicemen who served in the Republic of Vietnam and have a covered herbicide agent disease are entitled to effective dates pursuant to 38 C.F.R. § 3.816. Under 38 C.F.R. § 3.816 if VA denied compensation in a rating decision issued between September 25, 1985 and May 3, 1989, then the effective date will be the later of the date VA received the claim for the previously denied claim or the date entitlement to the disability arose. If a claim was pending before May 3, 1989 or was received by VA between May 3, 1989 and the effective date of the statue or regulation establishing a presumption of service connection (in this case August 31, 2010), then the effective date of the award will be the later of the date the claim was received by VA or the date the disability arose. If a claim was received within one year from separation from service, then the award shall be effective the day following the date of separation from service. If the previously mentioned conditions are not met, then effective dates shall be assigned pursuant to 38 C.F.R. § 3.114 or § 3.400. 38 C.F.R. § 3.816. Under 38 C.F.R. § 3.114, an effective date of an award of benefits based on liberalizing laws is assigned in accordance with the fact found but is typically no earlier than the effective date of the change. Claims within one year of the changed law become effective no earlier than the date the change went into effect. The changed law became effective on August 31, 2010, and the cut-off date for one year after the date the law went into effect would be August 31, 2011. Claims filed more than one year from the date the changed law became effective (in this case after August 31, 2011) will become effective one year prior to the date of review if the Veteran met all the requirements for eligibility. 38 C.F.R. § 3.114. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Under certain conditions, the effective date may the day following separation from service; if the Veteran’s claim was received within one year of separation from service. 38 C.F.R. § 3.400(b)(2). The provisions of 38 C.F.R. § 3.816 do not provide an adequate basis for an earlier effective date. In order to be entitled to effective date pursuant to this regulation, the Veteran must have: filed a claim between September 25, 1985 and May 3, 1989; a claim pending before May 3, 1989; filed a claim between May 3, 1989 and August 31, 2010; or filed within one year of separation from service. The Veteran’s claim for service connection was filed on December 3, 2013, decades after separation from service. Therefore, 38 C.F.R. § 3.816(c)(1), (2), or (3) does not provide an adequate basis for relief, and the Board must consider the provisions of 38 C.F.R. § 3.114 and § 3.400, as directed by 38 C.F.R. § 3.400(c)(4). The provisions of 38 C.F.R. § 3.114 do not provide an adequate basis for an earlier effective date. In order to be entitled to effective date pursuant to this regulation, the Veteran must have filed a claim for service connection between August 31, 2010 and August 31, 2011. As previously noted, the Veteran filed his claim for service connection on December 3, 2012; more than one year after a regulation changed entitling a Vietnam veteran to presume service connection for ischemic heart disease. Therefore, the earliest effective date the Veteran could receive would be one year prior to the date of the Veteran’s claim for service connection. Here, the Veteran has already been assigned an effective date that is one year earlier than when the Veteran’s claim for service connection was reviewed. Finally, the provisions of 38 C.F.R. § 3.400 do not provide an adequate basis for an earlier effective date, because the Veteran has already been assigned an effective date earlier than the date of the Veteran’s claim; and, as previously noted, the Veteran did not file his claim for service connection until decades after separation from service. The Board notes that a June 2015 rating decision indicated that if the Veteran could demonstrate medical evidence that his heart condition manifested prior to August 31, 2010; then the Veteran may be entitled to an earlier effective date. The Board recognizes that the Veteran has dutifully submitted medical records that unambiguously and irrefutably demonstrate that the Veteran’s heart condition existed decades prior to his currently assigned effective date, and that, in a November 2017 written statement, the Veteran has voiced frustration that he was being denied an earlier effective date after meeting the requirements outlined by the RO. Unfortunately, the RO was mistaken, and the Board does not have the authority to ratify this mistake by ignoring the pertinent laws and regulations governing the assignment of effective dates. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an effective date earlier than December 3, 2012. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an effective date earlier than December 3, 2012 is denied BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel