Citation Nr: 18144636 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-26 347 DATE: October 25, 2018 ORDER Entitlement to an effective date earlier than February 20, 2012 for the grant of service connection for ischemic cardiomyopathy status post myocardial infarction is denied. REMANDED Entitlement to an initial rating in excess of 60 percent from February 20, 2012 to December 14, 2013 for ischemic cardiomyopathy status post myocardial infarction is remanded. FINDINGS OF FACT 1. The first communication from the Veteran to VA expressing an intent to file a claim of service connection for ischemic heart disease was received on February 20, 2013. 2. An effective date of February 20, 2012 has been assigned for the Veteran’s award of service connection for ischemic cardiomyopathy status post myocardial infarction. CONCLUSION OF LAW The criteria for an effective date earlier than February 20, 2012 for the grant of service connection for ischemic cardiomyopathy status post myocardial infarction have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 1. Entitlement to an effective date earlier than February 20, 2012 for the grant of service connection for ischemic cardiomyopathy status post myocardial infarction Except as otherwise provided, the effective date of an 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 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the 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. 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). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 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 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, if the Veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114(a)(3). An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). The term “covered herbicide disease” includes ischemic heart disease. 38 C.F.R. § 3.816(b)(2). The record reflects that the Veteran served in the Republic of Vietnam and has ischemic heart disease. Accordingly, he is a “Nehmer class member” as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease 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. See 38 C.F.R. § 3.816(c)(1)-(3). Under 38 C.F.R. § 3.816(c)(2), if the class member’s claim was received between May 3, 1989 and the effective date of the liberalizing law, 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 provided in paragraph (c)(3) of this section. See 38 C.F.R. § 3.816(c)(2). A claim will be considered a claim for compensation if the claimant’s application or other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or VA issued a decision on the claim between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Paragraph (c)(3) provides that if the class member’s claim was received within one year of his or her separation from service, the effective date of the award shall be the day following the date of separation from active service. The December 2013 VA examination shows an initial diagnosis of ischemic cardiomyopathy in 1987. Ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange during service effective August 31, 2010. A claim of service connection for an ischemic heart disease from the Veteran was received by VA on February 20, 2013. The rating decision on appeal awarded him service connection for ischemic heart disease and assigned a 60 percent rating effective February 20, 2012, a year prior to the date the claim was received pursuant to 38 C.F.R. § 3.114(a)(3). In a February 2014 notice of disagreement, the Veteran contended that he was entitled to an effective date of April 5, 2011, the date of his myocardial infarction. The dispositive fact in this matter is the date when the Veteran first filed a claim seeking service connection for an ischemic heart disease. He did not have a claim of service connection for ischemic heart disease denied between September 1985 and May 1989, and did not have a pending claim of service connection for an ischemic heart disease between May 1989 and August 31, 2010. The Board notes that the Veteran did file a claim for service connection for hypertension in July 2009. However, hypertension is specifically excluded from the regulatory definition of ischemic heart disease (see § 3.309, Note 2). Furthermore, his claim was received decades (and not within a year) following his separation from service. Consequently, the above-outlined liberalizing provisions under Nehmer do not apply in the instant case. Even though the VA examiner found that the Veteran was diagnosed with ischemic cardiomyopathy in 1987 and VA treatment records reflect that the Veteran had a myocardial infarction in April 2011, these records do not qualify as an informal claim for service connection, as they do not identify service connection for ischemic heart disease as a benefit sought. As is indicated above, the effective date of an award of service connection is not based on the earliest medical evidence showing a diagnosis of the disability, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde, 12 Vet. App. at 382. The Board is bound by governing law and regulations, and has no authority to awards benefits not authorized by the governing law. Because the veteran is not shown to have filed a formal or informal application for service connection for ischemic heart disease prior to February 20, 2013, VA is precluded from granting an effective date for the award of service connection for ischemic heart disease prior to February 20, 2012. An effective date prior to February 20, 2012 is not permitted under 38 C.F.R. § 3.114(a)(3) because a claim for service connection for ischemic heart disease was not received within one year of when ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange (August 31, 2010). As the RO has already assigned the earliest possible effective date provided by law given the undisputed dispositive facts in this case, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 60 percent from February 20, 2012 to December 14, 2013 for ischemic cardiomyopathy status post myocardial infarction is remanded. The Board regrets further delay, but finds that additional development is necessary before a decision can be rendered on the remaining claim on appeal. The January 2014 rating decision indicated that VA treatment records from July 2009 through August 2013 were considered by the RO. Unfortunately, only records from December 2010 through August 2013 have been associated with the claims file, leaving records from July 2009 through December 2010 outstanding. Additionally, the December 2013 VA examination indicated that the examiner viewed the Veteran’s VA treatment records and noted that the Veteran underwent a diagnostic exercise test in February 2009. Records of that exercise test and of any other treatment prior to July 2009 have not been associated with the claims file and should be obtained on remand. In sum, on remand the AOJ should obtain any and all outstanding VA treatment records, to specifically include those outstanding records from July 2009 through December 2010 and any outstanding cardiovascular records from prior to July 2009. The matter is REMANDED for the following action: Obtain updated VA treatment records, to include any outstanding VA treatment records from July 2009 through December 2010 and any cardiovascular records from prior to July 2009. If such records are unavailable, the Veteran’s claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel