Citation Nr: 18161167 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 17-04 734A DATE: December 28, 2018 ORDER Entitlement to an effective date prior to July 2, 2012, for service-connected coronary artery disease is denied. REMANDED Entitlement to an initial evaluation in excess of 10 percent prior to July 12, 2016, and in excess of 30 percent thereafter, for service-connected coronary artery disease, is remanded. FINDING OF FACT Entitlement to an effective date prior to July 2, 2012, for service-connected coronary artery disease. CONCLUSION OF LAW The criteria for establishing an effective date prior to July 2, 2012, for service-connected coronary artery disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.303, 3.400, 4.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from July 1968 to July 1988, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, in the January 2017 substantive appeal, the Veteran referenced a disability involving his secondary arteries, possibly the peripheral artery disease noted in his July 2015 private treatment records. As this would be a separate claim secondary to the service-connected coronary artery disease, the Veteran is invited to file a formal claim for this disability using the appropriate form. Entitlement to an effective date prior to July 2, 2012, for service-connected coronary artery disease Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits 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)(2). For increases, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, provided the claim is filed within one year of such date. 38 C.F.R. § 3.400(o)(2). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing law, the effective date of the award may be one year prior to the date of the administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). As of August 31, 2010, ischemic heart disease was added to the list of presumptive disabilities for veterans exposed to herbicides. See 75 Fed. Reg. 53,202 (August 31, 2010); see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999). Here, the Veteran’s application for service connection for coronary artery disease was received on July 2, 2013. The RO initially granted service connection effective on that date, but later amended it to July 2, 2012. This change was based on the disability benefits questionnaire completed in July 2013, which indicated the Veteran was diagnosed with coronary artery disease prior to the year preceding the date of his service connection application. The Veteran’s application for service connection for coronary artery disease was received more than one year after the effective date of the liberalizing law adding ischemic heart disease to the list of presumptive diseases. As the effective date of the award of service connection was done on VA’s initiative, an effective date prior to July 2, 2012, is not appropriate in this case, as this is one year prior to the initial date of administrative determination of entitlement to service connection for this disability. See 38 C.F.R. §§ 3.114(a)(2); 3.816(c)(1)-(4). REASONS FOR REMAND Entitlement to an initial evaluation in excess of 10 percent prior to July 12, 2016, and in excess of 30 percent thereafter for service-connected coronary artery disease is remanded. In July 2016, the Veteran was afforded a VA examination. The examiner performed an interview-based METs test, as the Veteran was unable to complete an exercise stress test due to severe peripheral artery disease with intermittent right lower extremity claudication. The examiner estimated fatigue and right lower extremity pain at a physical activity level of 3 to 5 METs, but noted that the estimated METs level was affected by the peripheral artery disease. In a November 2016 addendum, the examiner noted that the ejection fraction was a more accurate measurement to assess the Veteran’s cardiac function. The Veteran’s private treatment records from the appeal period contain an electrocardiogram performed in September 2015, which reflects an ejection fraction estimated to be 60-65 percent. However, the full report from the electrocardiogram performed in July 2016 in conjunction with the VA examination is not present in the claims file. As it appears the Veteran’s cardiac function worsened between September 2015 and July 2016, a remand is necessary to obtain the full electrocardiogram report and assess the current severity of the coronary artery disease. The matter is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Columbus VA Medical Center and associate those documents with the claims file. Specifically, obtain the full electrocardiogram report from the testing performed on July 12, 2016, including the estimated left ventricle ejection fraction, and associate a copy of the report with the claims file. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected coronary artery disease. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel