Citation Nr: 18144773 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-20 727 DATE: October 25, 2018 ORDER An effective date prior to May 25, 2005, for the grant of service connection for coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. A March 2003 rating decision declined to reopen the claim of entitlement to service connection for heart disease; a timely notice of disagreement (NOD) was not received and no new and material evidence was received within the appellate period. 2. On May 25, 2005, VA received a request to reopen the claim of entitlement to service connection for heart disease. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 25, 2005, for the grant of service connection for CAD have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1972 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his Form 9 substantive appeal. However, he withdrew his request in correspondence received by VA in June 2017. Entitlement to an effective date prior to May 25, 2005, for the grant of service connection for CAD. Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to in this section. A “claim” is defined broadly to include 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). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). A March 2003 rating decision declined to reopen the claim of entitlement to service connection for heart disease; specifically, the Agency of Original Jurisdiction (AOJ) acknowledged treatment for heart disease, but determined that new and material evidence had not been received demonstrating a nexus between heart disease and service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the March 2003 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. On May 25, 2005, VA received a request to reopen the claim of entitlement to service connection for heart disease, to include as secondary to sleep apnea. 05/25/2005, Informal Claims. A December 2005 rating decision reopened the claim of entitlement to service connection for heart disease and denied it on the merits; the Veteran appealed the December 2005 decision to the Board. In March 2011, the Board reopened and remanded the claim of entitlement to service connection for heart disease. In December 2011, the Board bifurcated the claim of service connection for heart disease into claims of service connection for sick sinus syndrome (SSS) and CAD, granted service connection for SSS, and remanded the claim for CAD. A January 2012 rating decision (notification in February 2012) granted service connection for SSS, and assigned a 10 percent rating effective May 25, 2005. In October 2012, the Board granted service connection for CAD as secondary to sleep apnea. A March 2013 rating decision granted service connection for CAD, initially diagnosed as SSS, and claimed as heart disease, effective May 25, 2005. It is that decision from which the Veteran appeals, contending that he is entitled to an effective date prior to May 25, 2005, for the grant of service connection for CAD. The Board has reviewed the record but has not found any formal or informal written communication that could be construed as a petition to reopen the claim of entitlement to service connection for heart disease prior to May 25, 2005, and after the March 2003 rating decision; thus, an effective date prior to May 25, 2005, for the grant of service connection for CAD is not warranted. See 38 C.F.R. § 3.155(a). The Board finds that the currently assigned effective date of May 25, 2005, is proper based on the application of the above facts to the applicable laws and regulations, as noted above. The Veteran contends that he is entitled to an effective date in August 2004 for the grant of service connection for CAD, which is when he was diagnosed with SSS, or Tach-Brady Arrhythmia. The Veteran does not contend that evidence of the diagnosis was received by VA prior to May 25, 2005; rather, he argues that he provided it as soon as he was aware that the effective date was at issue. For an award based on receipt of new and material evidence, other than service department records, received within the appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). The proper effective date for an award based on receipt of new and material evidence, other than service department records, received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). Even if those records were received in August 2004, at the time of the diagnosis, it would still be outside the appeal period of the March 2003 decision declining to reopen the claim of entitlement to service connection for heart disease. See 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim). In other words, even had VA received evidence of the August 2004 diagnosis prior to May 25, 2005, receipt of the private medical records would not warrant an earlier effective date, which is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r) (emphasis added). Here, even if entitlement arose in August 2004, the petition to reopen was not received until May 25, 2005.   The Board further notes that the March 2003 rating decision acknowledged treatment for heart disease, but determined that new and material evidence had not been received demonstrating a link between heart disease and the Veteran’s period of service; there is no contention that evidence of a nexus was received by VA within a year of notice of the March 2003 rating decision. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel