Citation Nr: 18148614 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-35 228 DATE: November 8, 2018 ORDER Entitlement to an effective date earlier than March 01, 2006 for the grant of Dependency and Indemnity Compensation (DIC) benefits, is denied. Entitlement to an effective date earlier than May 05, 1994 for the grant of service connection for status post myocardial infarction with congestive heart failure, is denied. FINDINGS OF FACT 1. The Veteran died in March 2006. 2. The Appellant initially filed for DIC benefits in April 2006. 3. The Veteran’s medical record first evidences the existence of status post myocardial infarction with chest pain in May 1994. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date for entitlement to DIC, have not been met. 38 U.S.C. §§ 5110, 5121, 5121A; 38 C.F.R. §§ 3.400, 3.1000. 2. The criteria for entitlement to an earlier effective date for the grant of service connection for status post myocardial infarction with chest pain, 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 This matter comes before the Board of Veterans' Affairs (Board) on appeal from an September 2011 rating decision which granted service connection for the Veteran’s death by way of awarding entitlement to service connection for status post myocardial infarction with congestive heart failure. In August 2012, the Appellant filed a notice of disagreement (NOD) challenging the effective dates of the awards; in September 2014, the RO issued a statement of the case (SOC); and in October 2014, a substantive appeal (VA Form 9) was received. In September 2017, the Veteran testified at a Board hearing before the undersigned Veteran's Law Judge. A transcript of this hearing is associated with the file. The Board notes that the Appellant declined to discuss the two issues on appeal at her hearing. See September 2017 Board Hearing transcript (“The issue that the regional office formally placed on appeal concerned an earlier effective date for the award of dependency and indemnity compensation benefits prior to March 2006, and an earlier effective date for service connection for ischemic heart disease and the 100 percent rating for ischemic heart disease. I understand [Appellant] would prefer to discuss issues concerning awards of service connection for cancer of the esophagus and diabetes.”) As noted, instead of providing testimony for the matters stated on this title page and reflected in the 2016 SOC and Form 8, the Appellant raised concerns regarding multiple issues of herbicide related entitlement. As a review of the record demonstrates that these concerns have not been addressed by the Agency of Original Jurisdiction (AOJ), these matters are not before the Board and are referred to the AOJ for any appropriate action. 38 C.F.R. § 19.9(b). Entitlement to an effective date earlier than March 01, 2006 for the grant of Dependency and Indemnity Compensation (DIC) benefits. There is no basis in law or fact to grant an earlier effective date. The September 2011 rating decision granted service connection for the cause of the Veteran's death effective from March 1, 2006. The RO granted the claim on the basis that the service connection was also granted for status post myocardial infarction with congestive heart failure (CHF) as this disorder was identified on the March 2006 death certificate as a contributory condition. The effective date was assigned from March 1, 2006. That date represents the first day of the month in which the Veteran's death occurred. As a matter of law, no earlier effective date can be assigned. See 38 C.F.R. § 3.400 (c)(2). Thus, the Board is unable to assign an effective date earlier than March 1, 2006, for the award of DIC benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (c)(2). 2. Entitlement to an effective date earlier than May 05, 1994 for the grant of service connection for status post myocardial infarction with congestive heart failure. Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, 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. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Veterans Administration. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease, including coronary artery disease. 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, which in this case is August 31, 2010. See 38 C.F.R. § 3.816 (c) (1)-(3). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was 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, the effective date of the award will be the date such claim was received by VA or the date the disability arose, whichever is later. If the above requirements are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c). The September 2011 rating decision posthumously granted the Veteran entitlement to service connection for his CHF, awarding an initial disability rating 30 percent effective from May 05, 1994 for status post myocardial infarction with congestive heart failure, and 100 percent disabling after April 26, 2001. A review of the evidence of record, in a light most favorable to the Appellant, fails to provide support for an award of effective dates prior to those currently assigned. As an initial matter, the Board acknowledges that the Veteran filed a claim for a heart condition prior to the 1994 claim which provided the basis of the current effective date. However, as noted, applicable regulation states that it is the later of either the date the Veteran was denied compensation for a covered herbicide disease or the date the disability arose that a retroactive effective date will be granted. VA treatment records show that the Veteran was first diagnosed with coronary artery disease (CAD) in 1994. See May 1994 VA treatment record (“iliac artery occlusion or marked stenosis”). Probative medical evidence does not indicate that the Veteran's CAD disability arose prior to this year. For example, an October 1991 VA radiology report reflects a normal sized heart without “acute pulmonary process nor change since 4-18-90.” Similar notations of a “regular heart” are recorded on medical treatment notes consistently until 1994. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). After reviewing the entire record, the May 1994, notation of treatment for CAD is the earliest evidence of the onset of CAD. The claim for an earlier effective date for service connection for CAD is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel