Citation Nr: 18143026 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 15-43 579 DATE: October 17, 2018 ORDER Entitlement to an effective date of April 15, 2001, but no earlier, for the grant of service connection and separate evaluation for valvular heart disease with coronary artery disease (CAD) and severe aortic stenosis requiring coronary artery bypass graft (CABG) x 2 is granted, subject to the rules governing the payment of monetary benefits. FINDINGS OF FACT 1. VA amended the diagnostic code for hypertension, 38 C.F.R. § 4.104, Diagnostic Code 7101, to allow for a separate rating for heart disease on January 12, 1998. 2. The Veteran filed a claim for compensation relating to his service-connected disabilities that was received by the RO on April 15, 2002. 3. Resolving all doubt, medical evidence as early as June 2001, but no earlier, showed that the Veteran met the eligibility criteria for a separate rating for heart disease. CONCLUSION OF LAW The criteria for an effective date of April 15, 2001, but no earlier, for the grant of service connection and separate evaluation for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an earlier effective date for service connection and separate evaluation for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2 Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114(a). In order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph, 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. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. Id. If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The RO originally granted service connection for hypertension with flow murmur across aortic valve assigning a 10 percent rating in a March 1992 rating decision. The two conditions, hypertension and valvular heart disease (flow murmur across aortic valve), were evaluated together under the rating criteria for hypertension, 38 C.F.R. § 4.104, Diagnostic Code 7101. In a December 1996 rating decision, a rating higher than 10 percent for hypertension with flow murmur across aortic valve was denied. Effective January 12, 1998, VA amended the diagnostic code for hypertension to allow for a separate rating for heart disease. On April 15, 2002, the Veteran submitted a claim for compensation indicating that his service-connected disabilities had worsened. The RO eventually granted service connection for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2 in a December 2015 rating decision, assigning an effective date of April 15, 2002. Based on a careful review of the record, Board finds that the evidence supports the assignment of an effective date of April 15, 2001, one year prior to the date of the claim, under the provisions of 38 C.F.R. § 3.114(a)(3), for the grant of service connection for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2. A June 21, 2001 VA treatment record noted that the Veteran had a history of valvular heart disease. A July 2001 echocardiogram also noted aortic valve sclerosis. A July 2002 VA examination report shows systolic heart murmur from aortic sclerosis. The Veteran ultimately underwent surgery for severe coronary artery disease with severe aortic stenosis in May 2011. As he was shown as having aortic sclerosis that was later associated with his severe coronary artery disease, all doubt is resolved in the Veteran’s that he met the eligibility requirement for a separate rating for heart disease one year prior to the date of his claim on April 15, 2002; i.e., on April 15, 2001. There is no evidence to support the assignment of an effective date earlier than April 15, 2001, for the grant of service connection for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2. The provisions of 38 C.F.R. § 3.114(a) have been considered for the possibility of retroactive compensation back to January 12, 1998; however, the Veteran did not meet all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law, as he was not shown as having heart disease at that time. For instance, an October 1996 VA examination report shows the Veteran had been told he had a heart murmur, but denied any history of heart disease. The assessment was aortic valve flow murmur, hemodynamically insignificant. A March 1994 VA examination report also shows the Veteran did not have a history of heart disease, but did have a known aortic valve murmur, which was entirely asymptomatic. The record does not show that the Veteran had aortic sclerosis until his echocardiogram and VA treatment in June and July of 2001, which was later associated with severe heart disease. As the record does not show that the Veteran was continuously eligible for a separate rating for heart disease from January 12, 1998 to April 2002, he is not entitled to retroactive compensation to January 12, 1998, under the provisions of 38 C.F.R. § 3.114(a). Finally, to the extent that the Veteran appears to also assert that an earlier effective date should be awarded for the increased evaluation of 30 percent, the Board notes that different rules apply to increased ratings. If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Here, the separate rating for valvular heart disease was granted on the basis of the change in the rating criteria for hypertension which previously did not provide for a separate rating for heart disease until the change in the rating criteria in 1998. However, as noted, the Veteran did not file a claim for increase until April 15, 2002. Thus, even pursuant to the legal criteria governing the effective dates of increased ratings, the earliest effective date assignable would be one year earlier than the date of the claim if the increase occurred more than one year prior to the claim. In fact, as noted, if the increase occurred within one year prior to the claim as it appears in this case, the increase would be effective as of the date the increase was factually ascertainable if the Board were to consider the effective date issue pursuant to the provisions of 38 C.F.R. § 3.400 and without applicable of the provisions of 38 C.F.R. § 3.114. As such, the earliest possible effective date for the grant of service connection and a separate evaluation for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2, which based on the procedural history as outlined in detail above, is determined to be April 15, 2001. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, entitlement to an effective date of April 15, 2001, but no earlier, for service connection and a separate evaluation for valvular heart disease with CAD and severe aortic stenosis requiring CABG x 2, is granted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond