Citation Nr: 18123744 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-32 528 DATE: August 2, 2018 ORDER Entitlement to an effective date earlier than October 5, 2012, for the award of service connection for ischemic heart disease (IHD) is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for IHD is remanded. FINDING OF FACT The earliest effective date for which service connection for IHD can be established is October 5, 2012, the date the Veteran filed his claim for service connection. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than October 5, 2012, for the award of service connection for IHD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1964 to January 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. 1. Entitlement to an earlier effective date for service connection for IHD. Generally, the effective date of an award for service connection is the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Though this general rule has several exceptions, none of the exceptions are applicable to the facts here. Notably, the Veteran does not assert that any of them are. Instead, he asserts he is entitled to an additional year of compensation because VA regulations were liberalized during the course of his claim, and his claim was favorably decided as a result. See August 2015 VA Form 9, Appeal to Board of Veterans’ Appeals (citing 38 U.S.C. § 5110; 38 C.F.R. § 3.114). Specifically, the Veteran claims that his favorable claim was the result of VA changing the law to presume a connection between IHD and exposure to certain herbicide agents. Id. The Veteran is correct that the presumption of service connection for IHD is the legal theory that resulted in VA granting service connection for this condition. See June 2013 Rating Decision. However, this regulation was not changed while the Veteran’s claim was pending. The regulation actually changed prior to the receipt of the Veteran’s initial claim for this condition. IHD was among the list of conditions presumed connected to herbicide agents exposure in the 2011 version of the United States Code of Federal Regulations. See 38 C.F.R. § 3.309(e) (2011). The Veteran’s claim was submitted on October 5, 2012, and decided in June 2013. The regulation providing for a presumption of service connection between IHD and herbicide agents exposure was effective for the entirety of the Veteran’s appeal; it was in effect at the time his claim was received and decided. Consequently, the establishment of service connection for the Veteran’s claim was not the result of a change in regulations that liberalized the laws during the pendency or after it was decided adversely. It was simply the proper application of the then existing regulation. As a result, the effective date of the Veteran’s award is properly the date of his claim. 38 C.F.R. § 3.400. As previously noted, the Veteran’s claim was received on October 5, 2012. There are no earlier correspondences in the record that may be construed to be a claim for service connection for IHD, and it is not the Veteran’s contention that he filed an earlier claim. October 5, 2012, is the date service connection was established by the June 2013 rating decision; and it is the appropriate date of the Veteran’s award under the applicable regulation. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for IHD is remanded. The Veteran never underwent a VA examination prior to the establishment of service connection for his IHD, and he asserts that his claim cannot be properly rated without it. Notably, the record reflects he was scheduled for VA examinations in March 2013 and April 2013, and failed to report. However, the record also reflects the Veteran was incarcerated at that time and unavailable to report for those VA examinations. The Veteran is no longer incarcerated and there is also evidence in the record that his condition may be worse than his current evaluation suggests. In this regard, VA treatment records from November 2017 indicate the Veteran is not capable of walking on a treadmill for at least 3 minutes. It is not clear from the record if his heart condition is the cause of this difficulty. Consequently, a VA examination is necessary to provide further detail on the Veteran’s heart condition. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected IHD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to IHD alone and discuss the effect of the Veteran’s IHD on any occupational functioning and activities of daily living. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel