Citation Nr: 18146660 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-03 688A DATE: Entitlement to an effective date prior to December 15, 2011 for the grant of service connection for coronary artery disease. ORDER Entitlement to an effective date of August 31, 2010, and no earlier, is granted for the award of presumptive service connection for coronary artery disease. FINDINGS OF FACT 1. On January 7, 2008, VA received a letter and VA Form 21-526 in which the Veteran requested service connection for “Right Bundle Branch Blockage” and “HEART CONDITION”. 2. In an April 2009 rating decision, service connection was denied for heart condition with right bundle branch blockage. 3. A timely Notice of Disagreement (NOD) was filed in October 2009 in which herbicide exposure was alleged. 4. Ischemic heart disease was added to the presumptive list effective from August 31, 2010. 5. The Veteran was diagnosed with coronary artery disease (ischemic heart disease) on December 15, 2011. 6. In an April 2012 rating decision, presumptive service connection was granted for coronary artery disease (previously claimed as right bundle branch blockage), effective December 15, 2011. Service connection was granted based on the Veteran’s presumed exposure to Agent Orange due to his service on the demilitarized zone (DMZ) in the Republic of Korea. 7. Medical evidence received in January 2013 shows that the Veteran’s coronary artery disease (ischemic heart disease) existed prior to December 15, 2011. CONCLUSION OF LAW The criteria for an effective date of August 31, 2010, and no earlier, for the grant of service connection for coronary artery disease have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.309, 3.114, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1965 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the Veteran, through counsel, requested a Board hearing in a January 2015 correspondence. Subsequently, the Veteran’s representative stated in a December 2015 correspondence that the Veteran waives a Board hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704(e) (2017). In January 2016, the Board remanded this matter for new VA examination. Due to the failure of the RO to schedule the Veteran for a new VA examination, the Board again remanded this matter in October 2017 with the same instruction to schedule the Veteran for a VA examination. The Board finds there has been substantial compliance with its remand directives. See, D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand). The Board notes that since January 2016, the Veteran has perfected appeals for entitlement to an effective date prior to October 14, 2013, for the award of a 100 percent disability rating for service-connected coronary artery disease, as well as entitlement to a total disability rating due to individual unemployability for the period from May 5, 2012, to October 13, 2013. The Veteran has requested a board hearing for these matters and, as such, will be the subject of a future Board decision. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an effective date prior to December 15, 2011 for the grant of service connection for coronary artery disease The Veteran contends that he is entitled to an effective date prior to December 15, 2011 for the presumptive grant of service connection for coronary artery disease. Specifically, the Veteran has asserted that he has had symptoms of ischemic heart disease going back to at least 1995. By way of procedural history, on January 7, 2008, VA received a letter from the Veteran in which he stated that approximately in 1995 he was treated for an apparent heart attack that was later determined to be a right bundle branch black. In his application for compensation, received on the same date, the Veteran requested service connection for “Right Bundle Branch Blockage” and “HEART CONDITION”. In an April 2012 rating decision, service connection was granted for coronary artery disease (previously claimed as right bundle branch blockage), effective December 15, 2011. The Board notes that here, service connection for coronary artery disease was granted on a presumptive basis due to conceded in-service exposure to Agent Orange. The basis of that concession was the Veteran’s well-documented service on the demilitarized zone (DMZ) in the Republic of Korea. At the outset, the Board notes that the Veteran has asserted that the provisions of 38 C.F.R. § 3.816 apply to this appeal. In cases involving presumptive service connection due to exposure to herbicide agents, the provisions of 38 C.F.R. § 3.816 set forth an exception to the aforementioned effective date provisions concerning liberalizing law. 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991). That section only applies to "a Vietnam veteran who has a covered herbicide disease," which does not include veterans with service in the Korean DMZ unless they also had service in Vietnam. See 38 C.F.R. § 3.816 (b)(1)(i); see also Herbicide Exposure and Veterans with Covered Service in Korea, 76 Fed. Reg. 4245 (Jan. 25, 2011) (amending VA regulations regarding herbicide exposure of certain veterans who served in or near the Korean DMZ and regulations regarding spina bifida in their children, but not the regulations pertaining to Nehmer); accord VA Training Letter 10-04, attachment #2, Eligibility Requirements for Retroactive Payment Purposes (defining Nehmer class members as those who served in the Republic of Vietnam or on "ships associated with service in Vietnam and exposure to herbicide agents"); Nehmer Supplemental Training, Training Letter 10-04 Addendum: Prepared by the Nehmer Project Management & Policy Team May 3, 2013 (advising that "If review of the Veteran's service dates and locations was done in the past claims and file shows VBA already has been notified of Thailand, Korea or locations other than Republic of Vietnam (RVN), there is no need to re-develop even if granted s/c due to herbicide exposure previously. Nehmer class members can only include RVN service members."). Although the Veteran is presumed to have been exposed to herbicide agents during his service inclusive of activities in the vicinity of the Korean DMZ, and is diagnosed with a covered herbicide disease, he is not a Nehmer class member for purposes of assigning an earlier effective date under 38 C.F.R. § 3.816, as his military service did not include service in the Republic of Vietnam. See, Nehmer v. Veterans Administration of the Gov't of the United States, 284 F. 3d 1158 (9th Cir. 2002). Because the Veteran is not a Nehmer class member, the Board cannot assign an earlier effective date under the provisions of 38 C.F.R. § 3.816. 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 be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114 (a). Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, 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. Id. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. Id. If a claim is reviewed on the initiative of VA under this section 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. See 38 C.F.R. § 3.114 (a)(1). Otherwise, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2017). "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. The Board must determine when a service-connected disability manifested itself under the all of the "facts found," including the medical opinions in question, and assign an effective date based on that evidence. See, McGrath v. Gober, 14 Vet. App. 28, 35 -36 (2000). "[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. §5101 (a)); 38 C.F.R. § 3.151. A "claim" is 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). The benefit sought must be identified, though it need not be specific. See, Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also, Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board notes that coronary artery disease (ischemic heart disease) was added to the presumptive list effective from August 31, 2010. This amendment was made pursuant to a final rule published on and made effective on August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). The effect of this amendment was to establish presumptive service connection for ischemic heart disease based on herbicide exposure by amending 38 C.F.R. § 3.309 (e). Id. Because the amendment became effective on August 31, 2010, which was after the Veteran filed his claim on January 7, 2008, the Board cannot assign an effective date earlier than August 31, 2010. See 38 C.F.R. § 3.114 (a)(1); See 75 Fed. Reg. 53202. The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A January 1996 treatment record from Kaiser Permanente notes the Veteran reported chest pain. Left branch bundle block was diagnosed. An EKG revealed no apparent ischemia. A January 2000 x-ray report from Dr. C. T. O. notes the heart is normal with no evidence of acute cardiopulmonary disease or significant interval change. A December 2000 x-ray report from Dr. N. Y. T. notes the Veteran had reported chest pain for 3 weeks. The x-ray revealed the heart and mediastinal contours were normal. A January 2001 treatment record from Kaiser Permanente notes an echocardiogram revealed aortic sclerosis with mild insufficiency and a murmur. A September 2006 treatment record from Dr. G. A. M. notes the Veteran reported occasional "sudden lightning jerk" for the prior 3 to 4 months. The doctor described the Veteran's description as myoclonic jerks. Heart rate and rhythm were regular with no murmurs, rubs or gallops. An October 2006 treatment record from Dr. G. A. M. notes he first saw the Veteran a month prior regarding myoclonic jerks. Neither chest pains nor palpitations were noted, though left branch bundle blockage was noted. Heart rate and rhythm were regular with no murmurs, rubs or gallops. Rare myoclonic jerks and dyslipidemia were noted. In an April 2009 rating decision, service connection was denied for heart condition with right bundle branch blockage. A May 2010 VA treatment record notes the Veteran underwent echocardiography. Aortic valve sclerosis was noted. The Veteran was afforded a VA heart examination in August 2010. The Veteran denied having had a myocardial infarction. An EKG confirmed a bundle branch block was diagnosed, as was a heart murmur. No diagnosis of ischemic heart disease was noted, however, the examiner stated that this was due to lack of documentation. A December 2010 treatment record from Internal Medicine Associates notes the Veteran reported "slight chest tightness". A history of bundle branch block was noted. It was noted that the Veteran had chest pain, shortness of breath and EKG changes during an exercise stress test. A December 9, 2011 treatment record from Florida Heart Associates notes diagnoses of murmur, chest pain and essential hypertension. Diagnostic testing was ordered. A December 15, 2011 treatment record from Dr. L of Florida Heart Associates notes the Veteran underwent left heart catheterization, coronary angiography and left ventriculography. Mild left ventricular systolic dysfunction with “severe coronary artery disease involving the proximal portion of the ramus branch” was noted. Percutaneous intervention was deemed to be suitable “given [the Veteran’s] symptoms of exertional chest discomfort.” A January 2012 treatment record from Florida Heart Associates notes diagnoses of coronary artery disease, aortic valve disorders, murmur, carotid bruit, chest pain and essential hypertension. In January 2012, VA received an Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) filled out by a private cardiologist at Florida Heart Associates. It notes diagnoses of coronary artery disease, chest pain and benign hypertension. The date of diagnosis for coronary artery disease was noted as December 15, 2011. The Veteran was afforded a VA ischemic heart disease examination in March 2012. It was noted that the Veteran was diagnosed with coronary artery disease on December 15, 2011. A history of right branch bundle block since 1995 and left branch bundle block since 2011 were noted. In his August 2012 Notice of Disagreement (NOD), the Veteran asserted that he was entitled to an earlier effective date for the grant of service connection for coronary artery disease. The Veteran further asserted that Nehmer was applicable based on his service on the Korean DMZ. A January 2013 treatment record from Dr. L of Florida Heart Associates notes the Veteran has a history of atherosclerotic heart disease since the 1990s, referencing the Veteran’s “chronic chest pain”. The doctor stated that it was “never…diagnosed definitively until December of 2011” when the veteran underwent catheterization, showing a severe ramus branch stenosis. The doctor also noted that the Veteran had a stress test in January 2013 which did not reveal the Veteran’s diagnosis, but noted it is “likely to not be detected by stress testing due to the location.” Here, the doctor who diagnosed the Veteran’s coronary artery disease determined that it pre-existed the official date of diagnosis and based this on the Veteran’s history of chest pain and noting that, based on location, isn’t likely to show up on a stress test. As such, the Board considers this opinion to be significantly probative. In March 2013, VA received a letter from Dr. S. G. F., a primary care physician, who noted that the since the Veteran came under his care in 2005 he has been suffering intermittent shortness of breath, chest tightness, dizziness and chest pain. The doctor then stated that the Veteran has been suffering symptoms since the late 1990's that could be considered anginal equivalents consistent with ischemic heart disease large vessel, small vessel or otherwise. The Board finds this opinion to be too speculative upon which to base a finding that an earlier date for service connection is warranted. The use of the word "could" is speculative. See, Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The Veteran was afforded a VA heart conditions examination in September 2018. The examiner noted that the Veteran’s service treatment records show no complaints or diagnoses of a heart condition and concluded that there are no medical records from the years immediately post service to establish chronicity to service. The Veteran’s given history begins in late 1996 when the Veteran related waking up with chest pain which he said turned out to be a left branch bundle block. The Veteran stated that he dealt with chest pain for the next 15 years, taking nitroglycerin, until December 2011 when he went to the doctor with chest pain and states he was told he had an 80 percent blockage. The examiner reviewed the Veteran’s medical records and stated that records up to 2009 and 2010 showed no documentation of a diagnosis of coronary artery disease. The examiner then reviewed the January 2013 opinion of Dr. L. and stated that it was based on the Veteran’s report, and further stated that his medical records show that the veteran’s chest pain description was not that of anginal pain, but was due to other causes such as pneumonia and hiatal hernia. The examiner then noted that numerous stress tests failed to show ischemia or a cardiac cause of chest pain. The examiner concluded that December 15, 2011 was the correct date for the diagnosis of coronary artery disease. Here, the Board notes that in his dissection of Dr. L.’s January 2013 opinion, the VA examiner did not discuss the notation that the Veteran’s diagnosis is not likely to show up on a stress test, based on where it is located. As such, this opinion is of limited probative value. Here, the medical evidence is at least in equipoise as to whether Veteran’s coronary artery disease (ischemic heart disease) pre-existed the date of its diagnosis and had its onset in the 1990s. The benefit of the doubt rule is therefore for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). However, as noted above, because the amendment adding ischemic heart disease was added to the presumptive list pursuant to a final rule published on and made effective on August 31, 2010, which was after the Veteran filed his claim on January 7, 2008, the Board cannot assign an effective date earlier than August 31, 2010. See 38 C.F.R. § 3.114 (a)(1); See 75 Fed. Reg. 53202. As such, the Board finds that an effective date of August 31, 2010, and no earlier, for the grant of service connection for coronary artery disease is warranted. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel