Citation Nr: 1808040 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-19 770A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than January 15, 2002 for the award of service connection for coronary artery disease. 2. Entitlement to an effective date earlier than March 8, 2010 for the award of a 100 percent rating for coronary artery disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active service from January 1960 to July 1960; from October 1961 to November 1969; and from March 1971 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the appeal has been transferred to the RO in Montgomery, Alabama. The Board observes that in the Veteran's June 2014 substantive appeal, he requested a Board hearing. In conformance with his request, a hearing was scheduled in June 2017. In correspondence received in June 2017, however, the Veteran requested that the scheduled hearing be cancelled. In light of the foregoing, the Board determines that the request for a hearing has been withdrawn. Thus, the Board will proceed with consideration of the appeal based on the evidence of record. 38 C.F.R. § 20.704(e) (2017). FINDINGS OF FACT 1. The Veteran's initial claim of service connection for coronary artery disease was received on January 15, 2002. 2. Prior to March 8, 2010 the Veteran did not meet the criteria for a 100 percent rating for coronary artery disease. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 15, 2002 for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date earlier than March 8, 2010 for the award of a 100 percent rating for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Laws A specific claim in the form prescribed by the Secretary of the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA 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 1 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). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). 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). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2017); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). In addition, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, pursuant to orders of a United States District Court in the class action case of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816 (2017). A Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." Id. According to 38 C.F.R. § 3.816(b)(2), a "covered herbicide disease" includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder 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. See 38 C.F.R. § 3.816 (c)(1)-(3). 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 the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background In November 1994, the Veteran filed claims of service connection for multiple disabilities, including a new growth of the skin, a skin condition, impaired hearing, rotator cuff strain, costal chondritis, an eye condition, and arthritis. A claim of service connection for a heart disability was not made at that time. The evidence assembled in connection with the Veteran's various claims included VA medical records which showed that in February 1989, the Veteran sought treatment for pain in his neck, chest, and right shoulder. An ECG was performed that the results were normal with sinus bradycardia. The assessment was musculoskeletal strain. On January 15, 2002, the Veteran's original claim of service connection for a heart disability was received by VA. In support of the claim, the Veteran provided private treatment records. In a March 2001 private treatment record, it was noted that the Veteran had a history of chest pain with mixed features. He had undergone a stress test in July 2000, which was negative. It was noted that the Veteran was released from the hospital with complaints, to include chest pain. Laboratory results from the hospital revealed sinus rhythm, no ischemic ST segment shifts, and no evidence of prior infarction. The Veteran was again provided a stress test in May 2001. At that time, the test was positive stress with several cardiac risk factors for myocardial ischemia. Mild nonobstructive coronary artery diseases was assessed. An ejection fraction of 55 percent was noted. VA medical records were also retrieved in support of the Veteran's claim. Notably, in a June 2002 record it was noted that the Veteran had had a cardiac work-up done for chest pain one year prior, which revealed blockage of one artery. It was noted that the Veteran had been prescribed aspirin to treat his heart condition. In a March 2003 rating decision, the RO denied service connection for non-obstructive coronary artery disease. In a letter dated in March 2003, a private physician indicated that the Veteran's coronary artery disease, even though non-obstructive, was due to his hypertension and diabetes mellitus. The Veteran's notice of disagreement was received in July 2003. A Statement of the Case was issued in May 2004. Thereafter, in June 2004, the appellant filed a substantive appeal. Supplemental Statements of the Case were issued in November 2004 and June 2007. In the report of an August 2007 VA examination for the Veteran's service-connected diabetes mellitus, it was noted that his cardiac symptoms included angina, shortness of breath, fatigue, and weakness. In correspondence received in August 8, 2008, prior to certification of the appeal to the Board, the Veteran indicated that he wanted to cancel all pending appeals. On December 12, 2009, the Veteran submitted a petition to reopen the claim of service connection of coronary artery disease. In support of the claim, the Veteran provided VA and private treatment records noting complaints of chest pain. Notably, in a VA treatment record dated in August 2009, it was noted that the Veteran presented with an irregular heartbeat. He was started on medication by his cardiologist. Following evaluation, he was assessed with atrial fibrillation. Continued treatment with medication was noted in a follow-up treatment record dated in March 2010. It was documented that the Veteran had been stable with his current plan. In the report of a radiologic consultation report dated March 8, 2010, it was noted the ejection fraction at stress was 29 percent and the ejection fraction at rest was 35 percent. In correspondence dated in February 2011, the RO informed the Veteran that it was conducting a special review of his claims folder in accordance with Nehmer v. United States Department of Veterans Affairs. It was noted that the case was identified as a potential Nehmer member based on the addition of a number of additional disabilities, which included Ischemic Heart Disease. In a March 2011 ishemic heart disease disability benefits questionnaire, a clinician noted that treatment for the Veteran's heart condition required continuous medication. In a September 2011 rating decision, the RO granted service connection for coronary artery disease and assigned an initial 10 percent disability rating, effective date of January 15, 2002, and a 100 percent disability rating, effective March 8, 2010. Analysis Entitlement to an Earlier Effective Date for the Grant of Service Connection for Coronary Artery Disease The Veteran asserts that an effective date prior to January 15, 2002 is warranted for the award of service connection for coronary artery disease. He also contends that an effective date prior to March 8, 2010 is warranted for the assignment of a 100 percent disability rating for his service-connected heart disability. In support of his contentions, the Veteran's representative argues that a heart problem, sinus brachycardia, had been shown in medical records dated in 1989, which were received by the RO in May 1997. He noted that at the time of receipt of the records, a compensation claim was pending with a date of claim of November 3, 1994. He asserts that the heart condition claim, which would include sinus bradycardia, would have been pending since that time. He contends that under Nehmer, an effective date of November 3, 1994 is warranted. See Appellate Brief, received 01/11/2018. After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to January 15, 2002, for the award of service connection for the Veteran's coronary artery disease is not warranted. As noted herein, the Veteran's initial claim of service connection for coronary artery disease was received on January 15, 2002. The claim was denied in March 2003 and November 2005 rating decisions. Although the Veteran filed a timely appeal, he withdrew his appeal. The Veteran's petition to reopen the claim was received in December 2009. In the September 2011 rating decision, the RO granted service connection and assigned an effective date of January 15, 2002, the date the Veteran's initial claim of service connection was received. In reaching its decision, the Board has considered the arguments of the Veteran's representative to the effect that the Veteran's claim of service connection for a heart disability has been pending since November 3, 1994. While the Veteran did submit claims of service connection for a number of disabilities in November 1994 such disabilities did not include a heart disability. The Board finds that there is no written correspondence which could be construed as a formal or informal claim of service connection for a heart disability prior to January 15, 2002. The Board acknowledges the Veteran's representative's assertions that because medical records dated in 1989, received by the RO in May 1997, show a notation of sinus bradycardia which he contends could be a symptom of coronary artery disease, the Veteran's claim has been pending since that time. However, VA medical records cannot be accepted as an informal claim for disabilities where service connection has not been established. 38 C.F.R. § 3.157(b)(1); see also Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established); see also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree). Similarly, any private treatment records showing treatment for the claimed condition and its complications, in and of themselves, are insufficient to establish an informal application for service connection. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). The Board also finds the Veteran is not entitled to an effective date prior to January 15, 2002 as a Nehmer class member. At the outset, the Veteran was not denied compensation for ischemic heart disease between September 25, 1985 and May 3, 1989. Likewise, he did not submit a claim for service connection for such condition between May 3, 1989, and May 8, 2001, the date on which the liberalizing law that added ischemic heart disease as a disease presumptively due to in-service exposure to herbicides became effective. See 38 C.F.R. § 3.816. As such, an earlier effective date is not warranted under Nehmer. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an effective date prior to January 15, 2002, for the grant of service connection for coronary artery disease, thus, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an Earlier Effective Date for the Award of a 100 Percent Rating For Coronary Artery Disease After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to March 8, 2010, for the award of a 100 percent rating for coronary artery disease is not warranted. In this regard, medical records prior to March 8, 2010 do not show chronic congestive heart failure; a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent to warrant a 100 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). As detailed herein, prior to March 8, 2010, the medical evidence showed complaints of chest pain, fatigue, angina, and dizziness. Further, the records show that the appellant's heart condition was treated with medication. Such findings are considered in the 10 percent rating assigned prior to March 8, 2010. The evidence does not reflect that a higher rating is warranted until March 8, 2010, at which time a radiologic consultation report showed that the Veteran had an ejection fraction of 29 percent at stress. The evidence prior to March 8, 2010 does not reflect that the criteria for a higher rating had been met or that there was a factually ascertainable increase in the Veteran's coronary artery disease to warrant a 100 percent rating. In sum, it was not factually ascertainable prior to March 8, 2010 that the Veteran's coronary artery disease had an ejection fraction of 29 percent. Accordingly, an effective date earlier than March 8, 2010 for the award of a 100 percent rating for coronary artery disease is not warranted and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.400(o)(2); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than January 15, 2002 for the grant of service connection for coronary artery disease is denied. Entitlement to an effective date earlier than March 8, 2010 for the award of a 100 percent rating for coronary artery disease is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs