Citation Nr: 18157473 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-59 125 DATE: December 13, 2018 ORDER Entitlement to an effective date prior to April 13, 2016 for the grant of a 100 percent disability rating for ischemic heart disease is denied. FINDINGS OF FACT 1. The Veteran submitted new relevant evidence of an increase in the severity of his ischemic heart disease within one year of the July 2015 and November 2015 rating decisions. 2. April 13, 2016 is the first date that the Veteran’s ischemic heart disease was manifested by only being able to perform exercise at the level of 3 METs. CONCLUSIONS OF LAW 1. The January 2014 rating decision, which assigned a 30 percent disability rating for the Veteran’s ischemic heart disease, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. 2. The July 2015 and November 2015 rating decisions, which maintained the 30 percent disability rating for the Veteran’s ischemic heart disease, are not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. 3. The criteria are not met for an effective date earlier than April 13, 2016 for the grant of a 100 percent rating for ischemic heart disease. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1966 to August 1986. Entitlement to an effective date prior to April 13, 2016 for the grant of a 100 percent disability rating for ischemic heart disease Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with a claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In this case, the Veteran submitted an April 2016 Disability Benefits Questionnaire (DBQ) from Dr. J.M. regarding the current severity of his ischemic heart disease. That evidence is new, relevant, and material. Because this evidence was submitted within one year of the July 2015 and November 2015 rating decisions, they did not become final. The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefrom. 38 U.S.C. § 5110(a). Specifically, as to claims for increase, the statute provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically, as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The United States Court of Appeals for Veterans Claims (Court) and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98 (1998). A January 2014 rating decision granted service connection for ischemic heart disease with a 30 percent disability rating effective March 1, 2013. The Veteran submitted a statement in August 2014 saying that his ischemic heart disease had increased in severity. This was construed as an informal claim and denied in a July 2015 rating decision. It was again denied in a November 2015 rating decision. The Veteran did not appeal either decision but did appeal other issues from those decisions. He submitted the April 2016 DBQ from Dr. J.M. in May 2016. As decided earlier, this evidence prevented the July 2015 and November 2015 rating decisions from becoming final. Because the July 2015 rating decision was based upon the August 2014 statement, this is the claim for increase that will be considered in this decision. Based upon the fact that those two prior rating decisions were not final, the next question is what is the appropriate disability rating since August 2014 for the Veteran’s ischemic heart disease. The Veteran’s service-connected ischemic heart disease is evaluated as 30 percent disabling since March 1, 2013 and as 100 percent disabling since April 13, 2016 under Diagnostic Code (DC) 7005. DC 7005 applies to coronary artery disease. DC 7005 provides a 100 percent disability rating for three months following hospital admission for surgery. Thereafter, a 100 percent disability rating is provided for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent disability rating is provided for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent disability rating is provided for a workload of greater than 5 METs but less than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The Veteran was afforded a VA medical examination in June 2015. The Veteran was diagnosed with arteriosclerotic heart disease. During that examination, the Veteran had left ventricular ejection fraction of 76%. No congestive heart failure was shown. The Veteran’s VA treatment records do not show any other left ventricular ejection fractions during the time period on appeal and no evidence of heart failure. The next evidence of the severity of the Veteran’s ischemic heart disease is his April 13, 2016 DBQ, Exercise Stress Test, and 2D-ECHO from Dr. J.M. This is the first date claim on which it is factually ascertainable that there was an increase in the Veteran’s ischemic heart disease. 38 C.F.R. § 3.400(o). Therefore, this is the first date the Veteran can be awarded a 100 percent disability rating. There is no basis for an earlier effective date for the 100 percent disability rating for the Veteran’s ischemic heart disease. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke