Citation Nr: 1808918	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  12-05 099A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to an effective date earlier than November 25, 2002, for the grant of service connection for ischemic heart disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from October 1965 to October 1969.  He died in April 2014.  The appellant is his surviving spouse, so widow, and she has been recognized as the substitute appellant in this case for the purpose of processing this claim to completion.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Jurisdiction since has been vested, instead, with the RO in Manchester, New Hampshire, and that office certified the appeal to the Board.

In June 2013, prior to his unfortunate death, the Veteran had a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board.  A transcript of the proceeding is of record.


FINDING OF FACT

The Veteran did not file a claim for service connection for ischemic heart disease prior to November 25, 2002, and service connection for ischemic heart disease was not denied by VA prior to that time.



CONCLUSION OF LAW

The criteria are not met for an effective date earlier than November 25, 2002, for the grant of service connection for ischemic heart disease.  38 U.S.C. §§ 5101(a), 5110 (2012); 38 C.F.R. §§ 3.151 (a), 3.155 (as in effect prior to March 24, 2015); 38 C.F.R. §§ 3.1(p), 3.400, 3.816 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Prior to his unfortunate death, the Veteran had been granted service connection for ischemic heart disease (IHD) effective November 25, 2002, but he maintained that an earlier effective date was warranted.

Generally, the effective date for an award of service connection 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).  A claim for benefits requires (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.  Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.1(p).  In this case, the effective date was based in the date that the Veteran filed an informal claim for service connection for hypertension, stroke and stroke residuals, which has been deemed to encompass a claim for ischemic heart disease.  Although his exact contentions are unclear, he asserted an earlier effective date was warranted under Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I).  See also 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).


The effective-date regulations in cases involving Nehmer class members, including Vietnam veterans who have disabilities such as ischemic heart disease, are codified at 38 C.F.R. § 3.816.  If VA denied compensation for the same disease in a decision issued between September 25, 1983 and May 3, 1989, the effective date of the award is generally the later of the date VA received the claim on which the prior denial was based or the date the disability arose.  A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded.  Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease.  38 C.F.R. § 3.816(c)(1).

If a class member's claim for compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was 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 is generally the later of the date such claim was received by VA or the date the disability arose.  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 disease; 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 same herbicide covered disease for which compensation has been awarded.  38 C.F.R. § 3.816 (c)(2).


VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case.

Under the regulations formerly in effect, any communication or action indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, 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 one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015).

While the term "application" is not defined in the statute, the regulations as mentioned use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Here, based on a review of the Veteran's contentions and the evidence of record, an effective date prior to November 25, 2002, is not warranted.  The RO granted service connection for ischemic heart disease associated with herbicide exposure for the purpose of entitlement to retroactive benefits in the September 2011 rating decision on appeal.  Although a formal claim was not received for ischemic heart disease, specifically, as required the RO construed that it was part of the claim for service connection for hearing loss and right hand condition that the Veteran submitted on November 25, 2002 under the rules of Nehmer as VA had received private treatment records showing a diagnosis of coronary artery disease in developing the claims.  See February 2012 Statement of the Case (SOC).

There is no indication in the record that the Veteran ever claimed entitlement to service connection for ischemic heart disease, specifically, or any other condition included in the definition of ischemic heart disease prior to November 25, 2002, and there is no decision by VA that denied service connection for any form of ischemic heart disease prior to November 25, 2002.  See 38 C.F.R. § 3.309(e), including Note 2.

The Veteran asserted during the June 2013 hearing that, because his heart disease had incepted as early as 1987, which is when he had his first heart attack, an earlier effective date is warranted.  The record contains treatment records for a heart condition that were received in June 1995 and a Social Security Administration (SSA) determination dated in August 1995 granting disability benefits based on coronary artery disease with two previous myocardial infarctions (heart attacks).  During the relevant time period, VA would accept an examination or hospitalization report as an informal claim for an increase or to reopen, not instead as an initial claim.  38 C.F.R. § 3.157(a) (2014); but see Standard Claims and Appeals Forms, 79 Fed. Reg. 576601-01, 57675 (Sept. 25, 2014) (removing 38 C.F.R. § 3.157 effective March 24, 2015: "VA has eliminated informal claims for increase or to reopen based on receipt of VA treatment, examination, or hospitalization reports, private physician medical reports, or state, county, municipal, or other government medical facilities to establish a retroactive effective date").  However, since the Veteran is claiming an earlier effective date for a grant of service connection and this is not a claim to reopen as the issue was not previously denied prior to November 2002, this regulation does not apply in this case.  As per the applicable VA law and procedure for original claims for service connection, recorded treatment alone does not alone establish a claim without further expressed intent to apply for benefits.  Therefore, given the lack of a formal or informal claim for ischemic heart disease prior to November 2002, the effective date would remain November 25, 2002, based on applicable regulations.  See 38 C.F.R. § 3.400.

The Veteran also asserted during the June 2013 hearing that, because he had discussed applying for service connection for his heart condition in 1995 with VA, but was discouraged from doing it, an earlier effective date is warranted.  38 C.F.R. § 3.155(b)(1)(iii) provides that an oral intent communicated to VA will be accepted as an informal claim if it is directed to a VA employee designated to receive such a communication, the employee follows the provisions set forth in § 3.217(b) and documents the date the VA received the claimant's intent to file a claim in the claimant's records.  Although the Veteran claimed that he gave oral intent to apply in 1995, the evidence does not demonstrate that he also directed that intent to an appropriate VA employee nor was the intent to file a claim documented in his records.  Therefore, his reported oral communication cannot be construed as an informal claim.

In summation, the Veteran was not denied service connection for ischemic heart disease between September 25, 1983, and May 3, 1989, and did not have a claim for service connection for ischemic heart disease pending prior to 2002.  As such, the provisions governing a possible earlier effective date for service connection, including as afforded to Nehmer-class members, are inapplicable here.  

Accordingly, an earlier effective date for the grant of service connection for ischemic heart disease is denied.  In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b).


ORDER

An effective date earlier than November 25, 2002, for the grant of service connection for ischemic heart disease is denied.




____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs