Citation Nr: 1808297	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-26 129	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an effective date earlier than February 19, 2011, for the grant of service connection for arteriosclerotic cardiovascular disease.  

2. Entitlement to an initial evaluation in excess of 30 percent prior to August 15, 2017, and in excess of 60 percent thereafter for arteriosclerotic cardiovascular disease. 


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

H. Hoeft, Counsel


INTRODUCTION

The Veteran served on active duty from May 1952 to July 1972. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.  The Board recognizes that the claim has since been transferred to the RO in Oakland, California. 

The Veteran filed a timely notice of disagreement (NOD) in December 2011, indicating his disagreement with the effective date and the rating assigned.  The RO issued a statement of the case (SOC) in May 2014 and the Veteran filed a timely VA Form 9 substantive appeal also in July 2014. 

In September 2017, the RO granted an increased disability rating of 60 percent for arteriosclerotic cardiovascular disease, effective August 15, 2017.  As the maximum benefit provided by the applicable rating schedule has not been granted, the increased rating claim remains on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

This matter was most recently before the Board in October 2016, at which time it was remanded for the specific purpose of obtaining outstanding private treatment records.  These treatment records have been associated with the claims file. See October and November 2016 Private Medical Records.  Thus, there has been substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to an initial rating in excess of 30 percent prior to August 15, 2017, and in excess of 60 percent therafter for arteriosclerotic cardiovascular disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran served in the Republic of Vietnam and has a covered herbicide disease, i.e., coronary artery disease (CAD) (also diagnosed as arteriosclerotic cardiovascular disease); he is a Nehmer class member.

2. In unappealed May 1981 decision, the RO denied a November 1980 claim of entitlement to service connection for a heart condition as secondary to service-connected hyperthyroidism. 

3. In an unappealed January 2003 decision, the RO denied an August 26, 2002, claim of entitlement to service connection for a heart condition (denied as mild valvular heart disease).  

4. A September 2010 rating decision granted service connection for arteriosclerotic cardiovascular disease (CAD) based on the Veteran's presumed exposure to herbicide agents; the February 19, 2011 effective date was based on DBQ of the same date showing a diagnosis of arteriosclerotic cardiovascular disease.  

5. The most competent and probative medical evidence of record establishes that the date upon which ischemic heart disease (i.e., coronary artery disease/arteriosclerotic cardiovascular disease) arose was November 28, 2007.  


CONCLUSION OF LAW

The criteria are met for an effective date of November 28, 2007, but no earlier, for the award of service connection for arteriosclerotic cardiovascular disease (coronary artery disease).  38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.400, 3.816 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.10, 3.159, 3.326(a) (2017).

In cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). 

Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements, including an effective date. Goodwin v. Peake, 22 Vet. App. 128 (2008).  There has been no allegation of such error in this case by either the appellant or her representative.  Therefore, no further VCAA notice is necessary for the downstream effective date issue. 

VA also has a duty to assist the claimant in the development of the claim.  This duty includes assisting the claimant in the procurement of service treatment records (STRs) and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Veteran's STRs and relevant post-service private treatment records are associated with the claims file.  Additionally, an opinion is not necessary in this case as the issue of an earlier effective date is based on documents already of record.  

The Board also finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.).  Namely, the identified private treatment records have been obtained and associated with the claims file.  

In sum, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim.

Earlier Effective Dates - Legal Criteria

Generally, for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017).  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. 38 U.S.C. § 5110 (g) (2012); 38 C.F.R. §§ 3.114 (a), 3.400(p) (2017). 

VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).

A Nehmer class member is defined as a Vietnam veteran who has been diagnosed with a disorder presumptively-associated with herbicide exposure, to include ischemic heart disease. 

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).  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).

Under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id.  Ischemic heart disease was included as a presumptive herbicide exposure related disease under 38 C.F.R. § 3.309 (e), which was made effective by VA as of August 31, 2010.

However, District Court orders have created an exception to the generally applicable rules in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114.  See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409   (N.D. Cal. 1989) (Nehmer I).  The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003.  That regulation defines a "Nehmer class member" to include a Veteran who has or died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i), (b)(2)(i).  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 from a covered herbicide disease.  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 the disability arose. 38 C.F.R. § 3.816 (c)(1), (c)(2).

A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) 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 disability; or (ii) 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 herbicide disease, in which VA denied compensation 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)(i), (ii).

A claim will be considered a claim for compensation for an applicable herbicide disease if the claimant's application (and other supporting statements and submissions) may be reasonably viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability. 38 C.F.R. § 3.816 (c)(2)(i).

Factual Background

A July 1976 VA treatment record reflects that the Veteran underwent radioactive ablation of the thyroid in 1972 and that he began to experience intermittent episodes of tachycardia with associated with anxiety and chest pain in December 1975.  He was treated at Beale Air Force Base and was found to have sinus tachycardia without significant EKG changes.  In May and June 1976, he underwent a stress test which revealed no ST-T changes.  The July 1976 EKG was also normal.  

In November 1980, the Veteran submitted a claim for service connection for a heart condition, as secondary to service-connected hyperthyroidism.  A contemporaneous March 1981 VA examination indicated that the Veteran's thyroid gland had been removed in 1972 and that he had been in poor health since that time.  He endorsed premature ventricular contractions/palpitations, chest pain, and dizziness.  He was on thyroid medication.  The examiner noted that the Veteran had "symptoms suggestive of coronary artery disease" but that this would require further evaluation.  He also stated that "increasing doses of thyroid medication can induce arrhythmia disorder in a hyperthyroid patient."  

In an unappealed, final May 1981 rating decision, the RO denied service connection for a heart condition as secondary to hyperthyroidism.  

Thereafter, a June 2002 private exercise stress report reflected that there was no evidence for myocardial ischemia.  A nuclear stress test revealed normal myocardial perfusion; a gated SPECT study was also normal showing an ejection fraction of 58 percent.  The pertinent diagnosis was chest discomfort most likely consistent with reflux.  Mild valvular heart disease and a history of hypertension were also diagnosed at that time. 

In August 2002, the Veteran reported having chest pains; the assessment was that the chest pain was a musculoskeletal, probably triggering some intercostal nerve problem.  

On August 26, 2002, the Veteran submitted a claim for a heart condition (as secondary to service-connected hyperthyroid disease).  

In an October 2002 VA thyroid examination report, the Veteran expressly denied having any known coronary artery disease.  He did endorse heart palpitations.  No diagnoses with respect to the heart were rendered at that time. 

In an unappealed, final January 2003 rating decision, the RO denied service connection for mild valvular heart disease on direct and secondary bases. 

In January 2011, VA notified the Veteran that it was conducting a special review of his file in accordance with Nehmer.  

In a September 2011 rating decision, the RO granted service connection for arteriosclerotic cardiovascular disease.  The effective date of the award was set as February 19, 2011, which is the date the Veteran's physician completed a disability benefits questionnaire that showed a diagnosis of arteriosclerotic cardiovascular disease.  The Veteran subsequently filed a NOD in December 2011, disagreeing with the effective date and contending that he is entitled to an effective date of August 2002 or earlier.  Specifically, he noted that a VA examiner gave him an assessment of probable CAD in March 1981, when he was first examined for VA disability benefits, and that he should be afforded an earlier effective date on that basis. 

The February 2011 disability benefits questionnaire, which was completed by the Veteran's private treating physician, Dr. J.R., indicated that the Veteran was diagnosed with arteriosclerotic cardiovascular disease in 2008 and had a percutaneous coronary intervention in January 2008.  

The May 2014 SOC indicated that because the actual documentation of the catheterization procedure was not of record, the date of diagnosis could not be confirmed.  The Veteran provided additional evidence from his private treating physician, Dr. J.I., in August 2014, which again listed the date of the coronary artery stenting in 2008, with repeat stenting in 2011. 

Pursuant to the Board's most recent remand, a plethora of private treatment records, dated from 2003 to 2015, were obtained and associated with the claims file.  

Private treatment records dated from 2003 to 2005 revealed normal perfusion studies without evidence of infarction or ischemia.  

A November 2006 private treatment record noted that the Veteran had a history of chest discomfort but there was no evidence of ischemia on by previous nuclear testing or by angiography conducted in July 2001, which revealed normal coronary arteries ("he has never had evidence of ischemia by nuclear testing to suggest that this is the cause of his pain.").  A stress test was also normal.  A history of multi-valvular heart disease, tachycardia, and hypertension was noted. 

A February 2006 private treatment record again noted atypical chest pain without evidence of ischemia on previous nuclear testing and angiography and a recent negative CT scan of the chest. 

A November 28, 2007, private treatment report reflected that a recent CT angiography mild to moderate calcification of the proximal right coronary artery.  The assessment was mild, to at most, moderate coronary artery disease.  

Analysis

In this case, the Veteran's award of service connection for arteriosclerotic cardiovascular disease (CAD) was granted in a September 2010 rating decision, and was retroactively granted to February 19, 2011, as the date that entitlement arose based on an award of benefits under Nehmer v. United States Dept. of Veterans Affairs, N CV-86-6160 TEH (N.D. Cal.). 

However, the Veteran seeks an effective date earlier than February 19, 2011, for the award of service connection.  He specifically contends that he is entitled to an effective date of August 2002, based on the date of his claim for service connection for a heart condition, or an effective date of March 1981, based on a provisional diagnosis of coronary artery disease. 

As an initial matter, the Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulations. See 38 C.F.R. § 3.307 (a)(6).  In addition, he has a "covered herbicide disease" [i.e., ischemic heart disease] within the meaning of 38 C.F.R. § 3.816 (b)(2).  Accordingly, he is a Nehmer class member. 

Because the Veteran's claim was received more than one year after his separation from military service, the exception at 38 C.F.R. § 3.816 (c)(3) is not applicable.

Additionally, because VA did not deny compensation for ischemic heart disease in a decision issued between September 25, 1985 and May 3, 1989, the Veteran's claim for an earlier effective date is not covered under 38 C.F.R. § 3.816 (c)(1). 

Nevertheless, as discussed above, the Veteran submitted a claim for a heart condition on August 26, 2002.  The RO subsequently denied service connection for a heart condition (denied as valvular heart disease) in January 2003.  Resolving all reasonable doubt in the Veteran's favor, the Board will construe the August 2002 claim for a heart condition as a claim for ischemic heart disease (i.e., the same covered herbicide disease for which compensation has been awarded). 

Thus, 38 C.F.R. § 3.816 (c)(2) applicable in this case because a claim for ischemic heart disease was received between May 3, 1989 and August 31, 2010 (the effective date of the change in regulation allowing for a presumption of the covered disease). See 38 C.F.R. § 3.816 (c)(2)(ii). 

Accordingly, as relevant here, the effective date will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. 

In light of the above, VA received the Veteran's claim for service connection for ischemic heart disease/coronary artery disease on August 26, 2002.  No earlier documents can be construed as a claim for benefits for a "covered herbicide disease," specifically relating to ischemic heart disease, and the Veteran has not claimed otherwise.  

In so finding, the Board recognizes that the Veteran initially filed a claim for service connection for a heart condition as secondary to his service-connected hyperthyroidism in November 1980.  VA notified him of the denial of that claim in May 1981; he did not appeal that determination, nor did he submit new and material evidence within the one year appeal period.  The May 1981 denial therefore became final.  The Board notes that that the November 1980 claim falls outside the noted time periods in 38 C.F.R. § 3.816; specifically, that claim existed prior to September 25, 1985, and therefore the regulation does not allow for the assignment of an effective date prior to September 25, 1985.  Hence, the November 1980 claim cannot serve as a basis for an earlier effective date under the Nehmer regulations. 

In short, August 26, 2002, has been established as the correct date of claim; however, the question remains as to when entitlement to service connection for ischemic heart disease arose. 

In this case, the earliest date that an ischemic heart condition (namely, coronary artery disease) is documented in the claims file is November 28, 2007.  Indeed, a private treatment record of that same date reflects a diagnosis of mild to moderate coronary artery disease.  The most probative and competent evidence of record does not provide an earlier diagnosis for ischemic heart disease or coronary artery disease.  The Board acknowledges the November 1980 VA examination report that mentioned symptoms "suggestive" of coronary artery disease.  While there is a statement that "this patient probably has coronary artery disease," the statement is speculative and does not show objective or confirmed evidence of ischemic heart disease or coronary artery disease.  The examiner expressly noted that further evaluation would be necessary to make such a diagnosis.  Significantly, no further workup or cardiac follow-up is documented in the claims file until the early 2000's, at which time treatment records containing the results of stress tests and other objective cardiac tests note the express absence of ischemic findings in 2002, 2003, 2005, and 2006 (see, e.g., June 2002 private exercise stress report reflecting that there was no evidence for myocardial ischemia).  The Board finds the objective diagnostic findings contained in the 2002, 2003, 2005, 2006, and 2007 medical records to be more probative as to the presence (or absence) of ischemic heart disease than the provisional diagnosis/assessment provided by the 1980 examiner.  Notably, even the Veteran, himself, denied having any known coronary artery disease during his October 2002 VA examination.  

Further, while the record shows earlier diagnoses of various heart arrhythmias, including tachycardia and bradycardia and mitral valve prolapse/valvular heart disease, such are not considered to be ischemic heart conditions as contemplated under 38 C.F.R. § 3.309 (e). 

Accordingly, based on the competent and probative evidence outlined above, the Board finds that the earliest date upon which ischemic heart disease arose is November 28, 2007. 

The Board has considered the Veteran's lay statements and his contention that he had ischemic heart disease as early as 1980/1981.  The Board, however, again finds that the most probative evidence of record, namely, the objective medical tests and medical records referencing such tests, do not show that the Veteran's ischemic heart disease arose prior to November 28, 2007.  The Veteran is competent to attest to his symptoms; however, he is not competent to diagnose heart disease, as such requires medical expertise in the cardiovascular field.

In sum, the Board concludes that the evidence of record shows that the Veteran's "covered herbicide disease" arose November 28, 2007.  Applying the provisions of 38 C.F.R. § 3.816 (c)(2017) to this case, the effective date of the award will be the later of the date a claim for a "covered herbicide disease" was received by VA (here, August 26, 2002) or the date the disability arose (here, November 28, 2007). As November 28, 2007, is the later date, the Board finds that this is the correct effective date. 38 U.S.C.A. § 5107 (b). 


ORDER

Entitlement to an effective date of November 28, 2007, for the award of service connection for arteriosclerotic cardiovascular disease is granted, subject to the law and regulations governing the payment of VA monetary benefits. 


REMAND

Subsequent to the last supplemental statement of the case (SSOC) in September 2017 the Veteran underwent an additional VA Heart Conditions examination, which included a transthoracic echocardiogram testing, in January 2018.  Without a waiver of initial RO consideration, the Board has no alternative but to remand this matter for the issuance of a SSOC that considers all of the evidence of record associated with the claims file since the September 2017 SSOC. 38 C.F.R. §§ 19.31, 19.37 (2017). Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).


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.)

Readjudicate the Veteran's claim for entitlement to an initial evaluation in excess of 30 percent prior to August 15, 2017, and in excess of 60 percent thereafter for arteriosclerotic cardiovascular disease.  If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for 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 (West 2012).




______________________________________________
DEBORAH W. SINGLETON  
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs