Citation Nr: 1808272 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-25 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date prior to May 21, 2012, for the grant of service connection for coronary artery disease. 2. Entitlement to service connection for hypertension, including as secondary to service-connected coronary artery disease. 3. Entitlement to a higher initial rating for coronary artery disease (previously claimed as heart condition), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in June 2017 for the scheduling of a videoconference hearing. The Veteran testified in support of these claims during a videoconference hearing held at the RO before the undersigned Veterans Law Judge in November 2017. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. 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 issues of service connection for hypertension, including as secondary to service-connected coronary artery disease, and entitlement to a higher initial rating for coronary artery disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A claim for service connection for coronary artery disease was received by VA on October 16, 2001. 2. There is no evidence that the Veteran had coronary artery disease until April 1, 2008. CONCLUSION OF LAW Entitlement to an effective date of April 1, 2008, but no earlier, for service connection for coronary artery disease is granted. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that an earlier effective date of the grant of service connection for coronary artery disease is warranted. The Veteran alternately asserts that he should be entitled to an effective date of October 16, 2001 or April 1, 2008 for entitlement to service connection for coronary artery disease. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 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 VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. Effective August 31, 2010, coronary artery disease (among other diseases) was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309(e). See 75 Fed. Reg. 53, 202 (August 31, 2010). In general, when VA compensation benefits (among other specified types of VA benefits) are awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA (Secretary) or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). However, there is an exception to this rule under 38 C.F.R. § 3.816, which was promulgated pursuant to orders of the U.S. District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991). 38 C.F.R. § 3.816(a) and (e). Under 38 C.F.R. § 3.816, for certain diseases added by the Secretary to the list of diseases presumed to be caused by Agent Orange exposure, as set forth in 38 C.F.R. § 3.309(e), compensation benefits may be awarded prior to the effective date of the amendment adding the newly covered herbicide disease. These retroactive provisions apply to the addition of coronary artery disease to the presumptive list in August 2010. See 75 Fed. Reg. 53, 202 (providing, in pertinent part, that the Nehmer rules apply to the presumptive diseases newly added to § 3.309(e), including coronary artery disease). The retroactive provisions of § 3.816 provide, in pertinent part, that when a compensation claim for a covered herbicide disease is denied in a decision issued between September 25, 1985 and May 3, 1989, or is pending before VA on May 3, 1989, or 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 of service connection is the later of the date the claim was received by VA (which, in the case of a decision issued between September 25, 1985 and May 3, 1989, must be the claim on which the prior denial was based) or the date the disability arose. 38 C.F.R. § 3.816(c). If such a claim is submitted within one year of service separation, then the effective date of the award is the day following the date of separation from service. 38 C.F.R. § 3.816(c)(3). In other words, notwithstanding the fact that there was a prior final denial of the claim, or that the claim was submitted prior to the effective date of the newly established presumption for a covered herbicide disease, the effective date of service connection may be as early as the date of the original claim, as opposed to the date of the petition to reopen or the effective date of the new law. Section 3.816 defines a "covered herbicide disease" as a disease for which the Secretary established a presumption pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in § 3.309(e). As noted above, these provisions apply to the addition of coronary artery disease to the presumptive list in August 2010. For the purpose of determining entitlement to retroactive benefits for the grant of a covered herbicide disease under 38 C.F.R. § 3.816, a claim will be considered a claim for compensation for a covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disease. §3.816(c)(2)(i). However, in the alternative, such a claim will be established for the purposes of § 3.816 if VA issued a decision on the claim between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, and VA denied compensation in that decision for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816(c)(2)(ii). Thus, there is no intent requirement to establish a claim under 38 C.F.R. § 3.816(c)(2)(ii) for the purpose of entitlement to retroactive benefits pursuant to the Nehmer provisions. In this case, the Veteran filed a claim for entitlement to service connection for a heart condition on October 16, 2001. However, at that time there was no evidence that the Veteran had coronary artery disease. The Veteran has submitted an October 2011 private treatment record from Dr. M.R. showing that the Veteran had coronary artery bypass and coronary artery disease in April 2008. This is the earliest evidence of the Veteran having his service-connected coronary artery disease. Therefore, this is the earliest date that service connection can be effective, as the date the disability arose is the later date than the date the claim was received by VA. Accordingly, entitlement to an effective date of service connection for coronary artery disease of April 1, 2008 is granted. ORDER An effective date earlier of April 1, 2008, but no earlier, for the grant of service connection for coronary artery disease is granted. REMAND Unfortunately, a remand is required in this case for the remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. The Veteran asserts that his METs were not properly estimated during his June 2016 VA medical examination and private March 2013 and December 2014 private examinations and that his June 2016 VA medical examination was inadequate. He has credibly testified that he is not able to complete the tasks contemplated by the estimated METs levels in those medical records. To resolve the uncertainty, the Board will provide the Veteran with an additional VA medical examination to determine the current severity of his service-connected coronary artery disease. Additionally, the Veteran submitted a 1980 study on hypertension after coronary artery bypass and a May 1982 abstract in French from the Canadian Journal of Anesthesia. The AOJ should attempt to find an English version of the abstract or translate the abstract submitted by the Veteran. Additionally, the Veteran should be afforded a VA addendum medical opinion to consider these submissions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an English language copy of the May 1982 abstract or full journal article submitted by the Veteran from the Canadian Journal of Anesthesia or obtain a translation of the abstract submitted by the Veteran. The copy submitted by the Veteran is in French. 2. Schedule the Veteran for a VA medical examination to determine the severity of the Veteran's service-connected coronary artery disease for the entire pendency of his claim (from April 2008 - present) under the appropriate Diagnostic Code (currently DC 7005). The claims folder, and a copy of this remand, will be available to the examiner, who must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must provide an opinion as to the severity of the Veteran's service-connected coronary artery disease throughout the pendency of the Veteran's appeal. If the Veteran has had different levels of severity of his service-connected coronary artery disease at different time periods, those should be noted by the examiner. The examiner is asked to provide a detailed and thorough explanation for how s/he came to the conclusions of the severity of the Veteran's service-connected coronary artery disease for each appropriate time period, particularly with respect to the METs shown or estimated by the reported activity level if METs cannot be ascertained by clinical testing. Because the Veteran has previously been noted to be unable to complete clinical METs testing, a factual review of the evidence by the examiner is critical to comply with regulation. The examiner is advised that s/he must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic Virtual VA filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained the findings and opinion. The examiner is also advised that by law, the mere statement that the claims folder was reviewed and/or that the examiner has expertise in the subject matter is not adequate to find that the examination is sufficient. 3. Send the Veteran's claims folder to a VA cardiologist in order to obtain a medical opinion regarding the nature and likely etiology of the Veteran's hypertension. If the VA cardiologist deems it necessary, schedule the Veteran for a VA medical examination to determine the nature and likely etiology of the Veteran's hypertension. The Veteran asserts that his hypertension is secondary to his service-connected coronary artery disease or his coronary artery bypass. The examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's hypertension was incurred secondary to service-connected coronary artery disease or is aggravated by the Veteran's coronary artery disease or treatment for his coronary artery disease, to include coronary artery bypass. The examiner is instructed that s/he must discuss the relevance of the 1980 study on hypertension after coronary artery bypass and the May 1982 Canadian Journal of Anesthesia. The examiner is advised that s/he must provide an explanation for any conclusions reached. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims. If the benefits sought remain denied, issue an appropriate supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs