Citation Nr: 18155002 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-59 050 DATE: December 4, 2018 ORDER Entitlement to an effective date of July 14, 2005, but no earlier, for the grant of service connection for ischemic heart disease is granted. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam, is presumed to have been exposure to an herbicide agent, and has a diagnosis of a covered herbicide disease. 2. On July 14, 2005, VA received the Veteran’s claims to establish service connection for obstructive sleep apnea, hypertension, and posttraumatic stress disorder (PTSD). 3. In developing the Veteran’s claims to establish service connection for obstructive sleep apnea, hypertension, and PTSD, VA obtained evidence reflecting a February 2002 diagnosis of ischemic heart disease. 4. In an October 2005 rating decision, the RO denied the Veteran’s claims to establish service connection for obstructive sleep apnea, hypertension, and PTSD, and the Veteran initiated an appeal that was prosecuted continuously through August 31, 2010. 5. VA liberalized its regulations to add ischemic heart disease to the list of presumptive diseases associated with herbicide exposure, effective August 31, 2010. 6. On January 11, 2011, VA received the Veteran’s claim to establish service connection for ischemic heart disease. 7. In a June 2011 rating decision, the AOJ granted the Veteran’s claim to establish service connection for ischemic heart disease; a 100 percent initial evaluation was assigned, effective from August 31, 2010. CONCLUSION OF LAW Resolving interpretive doubt in the Veteran's favor, the criteria for the assignment of an effective date of July 14, 2005, but no earlier, for the award of service connection for ischemic heart disease have been met. 38 U.S.C. §§ 5110, 5103A (West 2002); 38 C.F.R. 3.159, 3.400, 3.816(c)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1969 to January 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (the Board) from a June 2011 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, among other actions, established service connection for ischemic heart disease; a 100 percent initial evaluation was assigned, effective from August 31, 2010. The Veteran expressed disagreement with the assigned effective date for this award, and the present appeal ensued. 1. Entitlement to an effective date of July 14, 2005, but no earlier, for the grant of service connection for ischemic heart disease As the resolution of the Veteran’s appeal seeking an earlier effective date turns on a matter of law, further assistance, such as the further procurement of records or VA examinations, would not assist the Veteran with the appealed issue. Consequently, no notice or development under the Veterans Claims Assistance of Act of 2000 is warranted with respect to this issue. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of 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 latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 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. 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 claim 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. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s 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 claimant, 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). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114 (a)(3). In cases involving presumptive service connection due to herbicide exposure, such as is the case here, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816 (b)(1)(i). 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). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation for a covered herbicide disease. The regulation applies to a claim for compensation where either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) 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 May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date entitlement arose. 38 C.F.R. § 3.816 (c)(1), (c)(2). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816 (c)(4). Ischemic heart disease was added to the list of diseases subject to service connection on a presumptive basis based on herbicide exposure, effective August 31, 2010. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. See 38 C.F.R. § 3.309 (e) Note 3. Analysis The Veteran seeks an effective date earlier than August 31, 2010, for the grant of service connection for ischemic heart disease. In the June 2012 Notice of Disagreement, the Veteran’s private attorney asserted that an effective date of July 2, 2005, is warranted. Following a review of the record, the Board finds that an effective date of July 14, 2005, but no earlier, for the award of service connection for ischemic heart disease is warranted. The facts of this case are largely undisputed. The Veteran is a Nehmer class member based on his service in the Republic of Vietnam, his presumed in-service exposure to an herbicide agent, and his diagnosis of a covered herbicide disease – ischemic heart disease. The Veteran’s initial claim for VA disability benefits was received by the Agency of Original Jurisdiction (AOJ) on July 14, 2005, although it appears that the VA Form was completed and signed by the Veteran at an earlier date in July 2005. The disabilities claimed by the Veteran in his July 2005 filing did not include ischemic heart disease or coronary artery disease. The Veteran’s July 2005 claims were denied by the AOJ in an October 2005 rating decision which did not address coronary artery disease or ischemic heart disease. The Veteran initiated an appeal of the AOJ’s denial of these issues that was continuously prosecuted through August 31, 2010. On January 11, 2011, within one year of ischemic heart disease being added to the list of diseases presumed by VA to be associated with herbicide exposure, the Veteran filed a claim to establish service connection for ischemic heart disease. In the June 2011 rating decision, the AOJ established service connection for ischemic heart disease, and the award was assigned effective from August 31, 2010 – the date that VA added ischemic heart disease to the list of diseases presumed to be associated with in-service herbicide exposure. The Veteran expressed disagreement with the assigned effective date, and the present appeal ensued. As noted above, the Veteran’s private attorney asserts that an effective date of July 2, 2005, is warranted for the grant of service connection for ischemic heart disease. However, this argument is not based on the statutes, regulations, and case law, applicable to the assignment of effective dates; rather, the assertion is based on a February 2011 VA-issued Training Letter and attached "Nehmer Training Guide," which stipulated that if medical records documenting a diagnosis of a now-covered presumptive disease are received by VA in conjunction with a prior decision on any compensation claim, then the now-covered condition is considered to have been implicitly part of the previously denied claim and attaches to any resulting appeal of the underlying issues subject to the initial claim. See VA Training Letter 10-04 (Feb. 10, 2011). Based on this Training Letter, the Veteran's attorney has argued that the October 2005 rating decision, which denied service connection for hypertension, PTSD, and obstructive sleep apnea, also implicitly denied entitlement to service connection for ischemic heart disease because evidence reviewed in conjunction with the explicitly adjudicated claims included evidence of two myocardial infarctions during the 1990’s and a February 2002 diagnosis of ischemic heart disease. Further, it is argued that this implicitly denied issue attaches to the downstream appeal from this October 2005 rating decision, which was continuously prosecuted until after the date that ischemic heart disease was added to the list of covered herbicide diseases (August 31, 2010) – which is the effective date assigned by the AOJ when the benefits was eventually granted in the June 2011 rating decision. Consequently, the Veteran's private attorney has argued the correct effective date for an award of service connection for ischemic heart disease should be July 2, 2005, the date the claims giving rise to the October 2005 rating decision were filed, as the claim and resulting appeal remained pending from that time until after August 31, 2010. Again, the facts cited by the Veteran’s private attorney are largely undisputed by the Board; however, all VA training letters, including the Training Letter cited above, have been rescinded with summaries incorporated into VA's Adjudication Manual, M21-1. The manual currently contains provisions similar to those in the Training Letter cited above. See M21-1, IV.ii.2.C.4. (updated July 5, 2018). In the consideration of appeals, the Board is bound by applicable statutes, regulations of VA, and precedent opinions of the General Counsel of VA. The Board is not bound by VA manuals, circulars, or similar administrative issues. See 38 U.S.C. § 7104 (c); 38 C.F.R. § 19.5. As a result, VA materials, to include VA's Adjudication Manual, M21-1, are not binding on the Board, except where the provisions have been determined by appropriate legal authority to constitute "substantive" rules. Neither the VA training letters discussed above, nor the resulting M21-1 changes have been determined to constitute "substantive" rules. Essentially, the question in this unique case is whether the Board is precluded from applying internal VA guidance provided by the Veterans Benefits Administration’s (VBA’s) Compensation Service in the M21-1 (which is more favorable to the Veteran) to the facts of an appealed issue when it is not bound to do so. While it is clear that the provisions of the M21-1 are not binding upon the Board, the Board is unaware of any legal preclusion to applying these provisions when such are more beneficial to the Veteran. Such is the case here. With the above in mind, it is uncontroverted that the Veteran is a Nehmer class member, and records obtained by VA in during the development of the July 2005 claims for VA compensation benefits include medical evidence reflecting a February 2002 diagnosis of ischemic heart disease. Further, the claims that were filed by the Veteran were continuously prosecuted by the Veteran in the appellate arena until after August 31, 2010. As such, the Board finds the assertions of the Veteran’s private attorney to be persuasive in the limited facts of this case. However, the effective date for this award sought by the Veteran’s private attorney is not supported by the evidence of record. As stated above, the Veteran’s private attorney has argued that the Veteran’s claims to establish service connection for hypertension, PTSD, and obstructive sleep apnea, were received by VA on July 2, 2005. However, review of this document reflects that, while the Veteran completed, signed, and dated the form in early-July 2005, the date stamp on the first page clearly reflects that the document was received by the RO in Montgomery, Alabama, on July 14, 2005. On this point, the law is clear that the “date of receipt” of a claim for benefits is the date that the document is received by VA, except for evidence and claims received by the State Department, Social Security Administration, or the Department of Defense. See 38 C.F.R. §§ 3.1 (r), 3.108 (2017). As the exceptions outlined in 38 C.F.R. §§ 3.1 (r) and 3.108 do not apply to the present case, the Board concludes that the Veteran’s claims to establish service connection for hypertension, PTSD, and obstructive sleep apnea, were received by VA on July 14, 2005. During the development of these claims, VA obtained medical evidence reflecting a February 2002 diagnosis of ischemic heart disease – a diagnosis of a now-covered presumptive disease. As such, the October 2005 rating decision which denied the three claims filed by the Veteran also included an implicit denial of a claim to establish service connection for ischemic heart disease. Further, this implicitly denied claim attaches to the Veteran’s appeal of the issues filed by the Veteran on July 14, 2005, and this appeal remained open and pending before VA until after August 31, 2010 – the date that ischemic heart disease was added to the list of presumed herbicide-covered diseases. In light of the above, the Board finds that the appropriate effective date for the grant of service connection for ischemic heart disease is July 14, 2005, but not earlier, and the appeal is granted to that extent. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400 (c)(3)(ii), 3.816 (2017). As there is no legal basis for assignment of an effective date earlier than July 14, 2005, the appeal is otherwise denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel