Citation Nr: 1808752	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  13-18 587	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a compensable rating for hypertension.

2. Entitlement to a compensable rating for a skin disorder, including pruritis and non-specific dermatitis.

3. Entitlement to an earlier effective date prior to November 27, 2007, for the grant of service connection for left ventricular hypertrophy (LVH).

4. Entitlement to an earlier effective date prior to November 27, 2007, for the grant of special monthly compensation (SMC) based upon housebound status.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Sangster, Counsel


INTRODUCTION

The Veteran served on active duty from July 1969 to May 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal of July 2010 and January 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The July 2010 rating decision granted service connection for LVH and SMC based on housebound status, both effective November 27, 2007.  It also continued the noncompenable rating for hypertension.  The January 2013 rating decision granted service connection for skin disorder, including pruritus and non-specific dermatitis, assigning an initial noncompensable rating.

The Veteran had an April 2017 Board hearing before the undersigned Veterans Law Judge.  A copy of the transcript is of record.

The issues of entitlement to compensable ratings for hypertension and skin disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Veteran's claim for service connection for a heart condition was received on September 5, 2007.

2. As of September 5, 2007, the Veteran had a single service-connected disability rated at 100 percent and another service-connected disability(ies) rated at 60 percent or more.


CONCLUSIONS OF LAW

1. The criteria for an effective date of September 5, 2007, but no earlier, for the award of service connection for left ventricular hypertrophy are satisfied.  38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2010, 2017).

2.  The criteria for an effective date of September 5, 2007, but no earlier, for the award of special monthly compensation (SMC) based upon housebound status have been met.  38 U.S.C. §§ 1114, 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking an effective date prior to November 27, 2007, for the award of service connection for LVH and SMC for based upon housebound status.  

Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C. § 5110 (a).  If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim.  38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i). 

In September 2007, the Veteran submitted a claim for service connection for "high blood pressure."  A September 20, 2007 resting echocardiography test conducted by VA revealed a diagnosis of mild concentric LVH.   In a November 21, 2007 VA examination report, the examiner indicated that LVH, also described as hypertensive heart disease, was a complication related to the Veteran's hypertension.  In February 2008, the RO awarded service connection for hypertension, effective September 5, 2007.  The Veteran was notified of this decision and of his appellate rights by letter dated February 26, 2008.  He did not appeal.  Accordingly, the February 2008 rating decision became final.

On November 9, 2009, the Veteran submitted a claim for service connection for a heart condition due to herbicide exposure.  A VA examination in December 2009 revealed a diagnosis of left ventricular hypertrophy.  

In the July 2010 rating decision on appeal, the RO awarded service connection for left ventricular hypertrophy, effective November 27, 2007.  The RO also awarded special monthly compensation based upon housebound status, effective November 27, 2007.  

The Board notes that the Veteran did not submit a claim for service connection for a heart condition until November 9, 2009, which was noted by the RO in the July 2010 rating decision.  However, the RO awarded an effective of service connection for left ventricular hypertrophy of November 27, 2007, approximately two years prior to receipt of the Veteran's claim.  In so doing, it appears that the RO accepted the Veteran's claim for service connection for high blood pressure submitted on September 5, 2007, as a claim for service connection for a heart disorder.  See July, 14, 2010 Rating Decision Codesheet, listing left ventricular hypertrophy associated with hypertension (claimed as high blood pressure).  Accordingly, the Board will do the same.

Regarding the Veteran's claim for an earlier effective date for the award of service connection for LVH, the Board finds that an earlier effective date of September 5, 2007, is established, as that is the date of the Veteran's claim and the date that he was also awarded service connection for hypertension.  

However, an effective date prior to September 5, 2007, is not warranted.  With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101 (2012); 38 C.F.R. § 3.151 (2017).  Effective prior to March 2015, VA regulation provided that 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) (2010); 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 when the Veteran filed his claim, it is applicable to the present case.  The Veteran maintains that he submitted a claim for service connection for a heart condition in 1975; however, the first communication from the Veteran indicating that he was seeking service connection for "high blood pressure" or a heart disorder was in his written statement received on September 5, 2007.  The record does not show that a claim for service connection for "high blood pressure" or a heart disorder was submitted prior to that date.  Thus, an effective date earlier than September 5, 2007 cannot be awarded.

The Board also points out that the effective date of the award of service connection is not based on the date of the earliest medical evidence demonstrating a disability, but on the date that the application upon which service connection was eventually awarded was filed.  Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that 'the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.').  The mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date.  Id.; Brannon v. West, 12 Vet. App. 32, 35   (1998).  While evidence contained in treatment records may constitute an informal claim in certain circumstances under 38 C.F.R. § 3.157, such provision explicitly applies only to cases where service connection has already been established or has been denied on the basis that the condition is noncompensable.  See MacPhee v. Nicholson, 459 F.3d 1323, 1325- 26   (Fed. Cir. 2006); Lalonde, 12 Vet. App. at 382.  Such circumstances are not shown here.

Further, the Board notes that in an August 2011 rating decision the Veteran's service-connected left ventricular hypertrophy was expanded to include arteriosclerotic heart disease.  The arteriosclerotic heart disease was included as a service-connected disability in light of the Veteran's service in Vietnam.  Ischemic heart disease (IHD) including CAD (among other diseases) was added to the list of presumptive conditions effective August 31, 2010.  See 75 Fed. Reg. 53, 202  (August 31, 2010); see also 38 C.F.R. § 3.309(e).  These additions constitute liberalizing laws for the purposes of the effective date provisions of § 3.114. 

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.  In other words, this section provides an exception to the general rule regarding liberalizing laws under § 3.114 for diseases presumed to be caused by Agent Orange exposure ("covered herbicide disease") under § 3.309(e) under certain circumstances.  When the criteria for this exception apply, as set forth below, then the effective date of service connection may be earlier than the effective date of the liberalizing law adding a disease to the list of diseases presumed to be caused by herbicide exposure. 

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 or the date the disability arose.  § 3.816(c).  As noted above, the Veteran's claim was received on September 5, 2007, which is between May 3, 1989, and August 31, 2010.  Even if ischemic heart disease was present prior to September 5, 2007, the appropriate date of service connection is the later of the date the claim was received by VA or the date the disability arose.  As such, September 5, 2007, would still be the proper effective date.

Here, the Veteran was awarded housebound SMC on the basis that he had a single service-connected disability rated at 100 percent and another service-connected disability(ies) rated at 60 percent or more.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  Since an earlier effective date of September 5, 2007, has been established for LVH, it follows that it also applies to the claim for SMC for housebound status.  At the outset, the Board notes that an October 2007 Board decision denied SMC for aid and attendance/housebound because the evidence did not show that the Veteran needed assistance of another based on his disabilities nor was he housebound.  The evidence of record, however, shows that the RO granted the Veteran's SMC based on housebound status in the July 2010 rating decision because the Veteran was already service-connected for posttraumatic stress disorder rated at 100 percent and the now additional service-connected LVH, rated at 30 percent and hypertension, rated at 0 percent, as well as diabetes mellitus, type II, rated at 20 percent; bilateral hearing loss, rated at 10 percent; and tinnitus, rated at 10 percent.  See 38 U.S.C. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2017).  Based on these facts, the Veteran met the requirement for SMC based on housebound status on September 5, 2007, but not earlier.

Accordingly, the Board finds that an earlier effective date of September 5, 2007, is warranted for the award of service connection for LVH and SMC based on housebound status.

ORDER

Entitlement to an earlier effective date of September 5, 2007, for the grant of service connection for LVH is granted.

Entitlement to an earlier effective date of September 5, 2007, for the grant of SMC based upon housebound status is granted.


REMAND

At the April 2017 Board hearing, the Veteran indicated that his service-connected hypertension and skin disorder have increased in severity.  Accordingly, these claims are remanded to provide the Veteran with new VA examinations assessing the severity of these service-connected disabilities.

Accordingly, the case is REMANDED for the following action:

1. Make arrangements to update the Veteran's VA medical treatment records from March 2013 forward.

2. After the above development has been completed, schedule the Veteran for the appropriate VA examinations to determine the severity of his hypertension and skin disorder.  The claims folder should be made available to the examiners for review, and the examination reports should reflect that such a review was undertaken.  All necessary tests should be performed.  If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be completed.

3. After completing all of the above, and any additional development deemed warranted, readjudicate the claims on appeal.  If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response.  Thereafter, return the file to the Board for further appellate consideration.

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 2014).



______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs