Citation Nr: 18148739 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 274 DATE: November 8, 2018 ORDER Entitlement to an effective date prior to March 31, 2013, for the grant of service connection for ischemic heart disease, status post myocardial infarction, is denied. FINDING OF FACT The Veteran’s informal claim for service connection for ischemic heart disease was received on August 27, 2013, with a Fully-Developed Claim (FDC) application received on March 31, 2014, and the record does not demonstrate that a claim for service connection for ischemic heart disease was received prior to the currently assigned effective date of March 31, 2013. CONCLUSION OF LAW The criteria for an effective date prior to March 31, 2013, for the grant of service connection for ischemic heart disease, status post myocardial infarction, have not been met. 38 U.S.C. §§ 5101 (a), 5110; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to March 1969 and from March 1969 to February 1973, with service in the Republic of Vietnam from September 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The August 2014 rating decision granted service connection for ischemic heart disease, status post myocardial infarction, and assigned a 60 percent initial evaluation effective March 31, 2013. Notice of the determination was issued on September 2, 2014. On September 16, 2014, VA received the Veteran’s expressed informal disagreement with the effective date assigned for the award of service connection. Thereafter, a December 2014 rating decision denied entitlement to an earlier effective date for service connection of ischemic heart disease, status post myocardial infarction, and in March 2015, the Veteran properly submitted a VA Form 21-0958, Notice of Disagreement (NOD) as required. The Board finds that the Veteran’s March 2015 NOD must be considered a NOD as to the effective date assigned in the August 2014 rating decision. Following issuance of a statement in August 2016, a substantive appeal was timely received within 60 days thereafter. As such, the August 2014 rating decision is the rating decision on appeal. 1. Entitlement to an effective date prior to March 31, 2013, for the grant of service connection for ischemic heart disease, status post myocardial infarction The Veteran has been granted service connection for ischemic heart disease, status post myocardial infarction, effective March 31, 2013. He maintains that an earlier effective date is warranted. Specifically, in a September 2014 statement, the Veteran stated, in part, he believed the effective date should go back one year before his informal claim for service connection was submitted on August 27, 2013. In his March 2015 NOD, the Veteran stated, in part, the first submission of his claim was received by VA on August 27, 2013, the claim was then lost and had to be resent, that the resubmitted claim was received by VA in March 2014 and that this second submission date was then used, he believed in error, to determine the effective date. He requested that the effective date be revised to September 1, 2012. In his September 2016 substantive appeal, he stated, in part, the fully developed claim was sent to VA on September 10, 2013 and there was a date stamp of September 18, 2013 showing when it was received and, thus, September 18, 2012 should be the correct effective date. In support of such, he referenced a letter from his representative, which is of record, and which bears a VA receipt stamp of September 18, 2013 and, in part, listed that a VA 526EZ was being submitted for consideration. Generally, the effective date for an award of service connection 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 (b). A claim for benefits requires (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.1 (p). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the pre-amendment regulations, any communication or action, indicating an intent to apply for one or more benefits under 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 (a) (in effect prior to March 24, 2015). Additionally, there are different rules for the assignment of effective dates that are specific to claims decided under the FDC process. In such cases, the effective date of an award of disability compensation to a veteran who submits an application that sets forth an original claim that is fully developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110 (b)(2)(A). A claim for service connection submitted through the FDC process, by definition, meets the statutory requirement of an original claim that is fully-developed as of the date of submittal. 38 U.S.C. § 5110 (b)(2)(B). Further, VA has promulgated special rules for effective dates for the award of presumptive service connection based on exposure to herbicides pursuant to the class action suit of Nehmer v. United States Department of Veterans Affairs, 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); and Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer “class member” is a Vietnam Veteran who has a “covered herbicide disease.” For a Nehmer class member, the effective date of the award of disability compensation for a covered herbicide disease will be the later of the date the claim was originally received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(2). The Veteran qualifies as a Nehmer class member as a Vietnam veteran who has been diagnosed with a disorder presumptively associated with herbicide exposure. The effective date regulations in cases involving Nehmer class members, including Vietnam veterans who have disabilities such as ischemic heart disease, are codified at 38 C.F.R. § 3.816. If VA denied compensation for the same disease in a decision issued between September 25, 1983 and May 3, 1989, the effective date of the award is generally the later of the date VA received the claim on which the prior denial was based or the date the disability arose. If a class member’s claim for 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 is generally the later of the date such claim was received by VA or the date the disability arose. Based on a review of the Veteran’s contentions and the evidence of record, an effective date prior to March 31, 2013, is not warranted. In this case, the Veteran filed an informal claim for ischemic heart disease which was received by VA on August 27, 2013. He submitted a formal application for benefits, for ischemic heart disease in an FDC application, VA Form 21-526EZ, received by VA on March 31, 2014. An August 2014 rating decision, granted service connection for ischemic heart disease, status post myocardial infarction with an evaluation of 60 percent effective March 31, 2013, which was one year prior to the date of receipt of the claim based on the FDC framework. As the Veteran’s March 2014 claim was submitted under the FDC framework, the rules governing the assignment of effective dates for claims decided under the FDC process apply to the present claim. 38 U.S.C. § 5110 (b)(2)(A). When assigning a retroactive effective date to an FDC, as the RO did here, an original compensation claim received from August 6, 2013 through August 5, 2015 must receive consideration of entitlement to an effective date prior to the date of that claim under PL 112-154, Section 506, to include up to one full year prior to the date the FDC claim was received. The provisions of PL 112-154, Section 506, however, do not apply to informal claims filed prior to March 24, 2015. The Board notes that the Veteran submitted an informal claim for benefits received by VA on August 27, 2013. In the August 2013 informal claim the Veteran explicitly stated, in part, that he intended to apply for compensation benefits under the FDC program and this statement was to preserve his effective date for entitlement to benefits. The Board acknowledges that the August 27, 2013 submission noted the Veteran’s intent to apply for benefits, identified the benefit sought (service connection for ischemic heart disease), and could be interpreted as an informal claim. As previously discussed, if a formal claim is filed 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. Here, because the Veteran did file a formal claim within one year of his informal claim, a date based on a prior, pending, unadjudicated claim can be made available for August 27, 2013. However, informal claims have not been incorporated into the FDC law. Moreover, the current effective date assigned under the FDC process is March 31, 2013, and this date predates the informal claim date. Thus, the effective date of March 31, 2013 is more beneficial to the Veteran. The RO correctly applied the rules for determining effective dates, under the FDC process. Additionally, as to the document from the Veteran’s representative, received by VA on September 18, 2013 and dated September 10, 2013, which referenced, in part, that a VA 526EZ was submitted for consideration, such also referenced a number of other documents, none of which are documented of record as having been received by VA on September 18, 2013. Further, a March 31, 2014 coversheet from the Veteran’s representative (also received on the date the VA 526EZ of record was received by VA) stated, in part, the Veteran was resubmitting a FDC claim for ischemic heart disease and explicitly noted the original was submitted as a pledge claim on September 10, 2013. This date matches the coversheet-type document from the Veteran’s representative, which was dated September 10, 2013 and received by VA on September 18, 2013. Thus, the March 31, 2014 coversheet specified that a pledge claim had been submitted in September 2013, rather than a FDC claim, which is consistent with the other evidence of record. Further, there is no indication in the record that the Veteran ever claimed service connection for ischemic heart disease, coronary artery disease or any other condition included in the definition of ischemic heart disease prior to August 27, 2013, and there is no decision by VA that denied service connection for any form of ischemic heart disease. See 38 C.F.R. § 3.309 (e), including Note 2. The Veteran was not denied service connection for ischemic heart disease, coronary artery disease or any other condition included in the definition of ischemic heart disease between September 25, 1983, and May 3, 1989, and did not have a claim for service connection for ischemic heart disease pending prior to August 2013. As such, the provisions governing a possible earlier effective date for service connection, as afforded to Nehmer class members, are inapplicable here. Accordingly, an earlier effective date for the grant of service connection for ischemic heart disease, status post myocardial infarction, is denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel