Citation Nr: 18147917 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-32 643 DATE: November 8, 2018 ORDER Entitlement to an effective date earlier than September 16, 1999 for the grant of service connection for ischemic heart disease (IHD) is denied. FINDING OF FACT 1. The Veteran initially filed an application for service connection for chest pains in November 1978. This claim was ultimately denied by the Board in a September 1980 decision. 2. After receiving additional medical evidence, the claim was reopened and again denied in a June 1981 rating decision. The Veteran did not appeal this decision. 3. The Veteran filed another application for service connection for a heart problem on September 16, 1999. CONCLUSION OF LAW The criteria for an effective date prior to September 16, 1999, for the grant of service connection for IHD, have not been met. 38 U.S.C. §§ 1110, 5110 (2012); 38 C.F.R. §§ 3.157, 3.160, 3.400, 3.816 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date and the Nehmer Stipulation Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). For cases where a Veteran seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), aff’d Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). Consistent with the above-described prior case law, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and a Veteran could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Effective dates of certain awards of service connection are governed pursuant to the orders of a United States district court in the class-action cases arising from Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). See 38 C.F.R. § 3.816. A “Nehmer class member” is defined to include a Vietnam Veteran who has a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1). A “covered herbicide disease” means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, other than chloracne, as provided in § 3.309(e). 38 C.F.R. § 3.816 (b)(2). The regulation applies to claims for disability compensation that were either pending before VA on May 3, 1989, or were received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease. 38 C.F.R. § 3.816 (c). IHD was added to the list of diseases associated with exposure to certain herbicide agents effective October 30, 2010. See 75 Fed.Reg. 53202 (August 31, 2010). If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. 38 C.F.R. § 3.816 (c)(1). Where a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and the claim was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, 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 otherwise provided in paragraph (c)(3) of 38 C.F.R. § 3.816, which pertains to claims filed within one year from the date of separation from service. 38 C.F.R. § 3.816 (c)(2). A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant’s application and other supporting statements and submission 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 (ii) 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. 38 C.F.R. § 3.816 (c)(2). Otherwise, the effective date of the award is determined in accordance with 38 C.F.R. §§ 3.114, 3.400. 38 C.F.R. § 3.816 (c)(4). 1. Entitlement to an effective date earlier than September 16, 1999 for the grant of service connection for IHD. The Veteran qualifies as a Nehmer class member. He has verified service in the Republic of Vietnam from March 1969 to October 1970 and has at least one covered herbicide disease. Therefore, in determining his effective date for service connection for IHD, the Nehmer stipulation applies. Nevertheless, the Veteran is not entitled to an effective date earlier than September 16, 1999 for the award of service connection for IHD. While the Veteran first filed an application for service connection for chest pains, which can be construed as IHD, in November 1978, this claim was finally denied by a September 1980 Board decision. The claim was reopened following additional medical evidence, but again denied in June 1981. The Veteran did not further appeal this denial. Therefore, the June 1981 rating decision for service connection for chest pains became final. The Veteran did not file another application for service connection for a heart problem until September 16, 1999. Pursuant to the Nehmer stipulation, if VA previously denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. See 38 C.F.R. § 3.816 (c)(1). In this case, VA did not previously deny compensation for the Veteran’s IHD between September 25, 1985 and May 3, 1989, instead compensation was previously denied in September 1980 and June 1981. Thus, this portion of the stipulation does not apply to the Veteran’s claim. The Nehmer stipulation also says where a class member is entitled to disability compensation for a covered herbicide disease, and the claim was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (in this case, October 30, 2010), 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. See 38 C.F.R. § 3.816 (c)(2). In this case, the only claim VA received from the Veteran between May 3, 1989 and October 30, 2010 regarding his heart, was his September 16, 1999 claim for service connection for a heart problem. As such, when the claim was eventually granted in a March 2011 rating decision, the RO assigned the Veteran’s effective date back to September 16, 1999 pursuant to Nehmer. Accordingly, entitlement to an effective date prior to September 16, 1999 for the award of service connection for IHD is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel