Citation Nr: 19106130 Decision Date: 01/25/19 Archive Date: 01/25/19 DOCKET NO. 12-30 009 DATE: January 25, 2019 ORDER An effective date earlier than June 30, 2003 for the grant of service connection for coronary artery disease is denied. FINDING OF FACT The record does not show a communication to VA with the intent to seek benefits based on exposure to Agent Orange prior to June 30, 2003. CONCLUSION OF LAW The criteria for an effective date earlier than June 30, 2003 for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.114, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from June 1966 to June 1986. 1. Entitlement to an effective date earlier than June 30, 2003 for the grant of service connection for coronary artery disease (CAD) The Board previously considered and denied this appeal in May 2017. The Veteran appealed that decision, and the Court of Appeals for Veterans’ Claims vacated and remanded for the Board to provide sufficient reasons and bases as to whether the Veteran had filed a prior informal claim. Generally, the effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, a claim reopened after a final disallowance, or a claim for an increased rating, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Additionally, when VA or an adjudicate body passes a liberalizing law and compensation is granted, a Veteran may receive a retroactive effective date prior to the date he or she would be entitled to under the above rules. See 38 C.F.R. § 3.114. Diseases associated with exposure to herbicide agents are subject to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 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). If a qualifying veteran is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be the later of the date a prior claim was originally received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1)-(2). If there was no prior claim, then the effective date of the award shall be determined in accordance with the general effective date regulations, cited above. 38 C.F.R. § 3.816(c)(4). In the current case, the grant of service connection was based on CAD as a disease associated with the Veteran’s presumed exposure to herbicide agents. Therefore, the Nehmer rules apply. It is undisputed that the Veteran was diagnosed with CAD in 1992 and that he first filed a formal claim for service connection for CAD in April 2010. Ischemic heart disease (coronary artery disease) was not added to the list of presumptive conditions based on herbicide exposure until August 31, 2010. The current effective date of June 30, 2003, was derived from the date the Veteran filed a claim for service connection for diabetes due to Agent Orange exposure and medical records available to VA at the time showing a diagnosis of CAD. The remaining question before the Board is whether the record contains an informal claim for CAD prior to June 30, 2003, which could allow for an earlier effective date for the grant of service connection. A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Under the regulations in place prior to March 24, 2015, any communication or action received from the claimant, or certain specified individuals on the claimant’s behalf, that indicated intent to apply for a benefit, and identified that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014). In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court summarized that (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing are the essential requirements of any claim, whether formal or informal. The Board has reviewed the evidence and determines that the criteria for an effective date prior to June 30, 2003 for the grant of service connection for CAD have not been met. See 38 C.F.R. §§ 3.114, 3.400, 3.816. The Veteran contends that his 1997 request, application, and examination for the Agent Orange Registry should constitute an informal claim for benefits for CAD. In multiple correspondence, the Veteran provides details of the timeline of events. First, on September 16, 1997, he went to the VA medical center to request a medical examination with the intent to apply for compensation for CAD. Next, he entered information on the Agent Orange Registry Code Sheet and underwent an Agent Orange examination on October 24, 1997. A second notation of an Agent Orange examination appears in VA records dated March 6, 1998. The Agent Orange Registry Code Sheet, dated October 24, 1997, identifies the Veteran’s complaint of coronary artery disease and the indication that he attributed the complaint to Agent Orange exposure. The registry code sheet does not state that the Veteran was pursuing benefits. The October 1997 examination report documents that the Veteran served in Vietnam from November 1966 to 1967 and he had coronary artery disease status post bypass. The March 1998 examination note includes similar information on the diagnosis and the Veteran’s service in Vietnam. Neither examination report documents the Veteran’s intent to file for benefits. Although the Veteran reported that he requested the 1997 examination with the intent to file for benefits, the documents from that time do not reflect such an intent was conveyed to VA in writing. Further, a review of the record reveals no written correspondence was received by the Veterans Benefits Administration between 1987 and 2003. In the brief before the Court, the Veteran’s representative cited to the April 2012 hearing and explained that after receiving the Agent Orange Registry examination, the Veteran was told he could not receive VA benefits because CAD did not qualify as an Agent Orange related disability. The Board finds the records from 1997 evidence a diagnosis of CAD and the Veteran’s belief that his CAD was attributable to herbicide exposure. However, a formal or informal claim requires a written communication conveying the intent to seek benefits. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that there must be some intent expressed to apply for benefits and endorsing the Court’s holding in Brannon v. West, 12 Vet. App. 32, 35 (1998) (“The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek . . . service connection[.]”)). The only written communication from the Veteran to VA was the Agent Orange Registry form. Nowhere in that form did the Veteran request compensation or otherwise convey an intent to receive benefits from VA for his CAD. The Veteran had actual knowledge of the requirements for filing a VA benefit claim as he had successfully done so in 1986. Indeed, the evidence reflects that he chose not to file a written claim in 1997, because he was told that CAD was not eligible for compensation based on Agent Orange exposure. It, therefore, appears the Veteran requested the Agent Orange examination as a means to determine if a claim for benefits would be fruitful; when the answer was no, he declined to file a claim. Without both a written communication and intent to apply for benefits, the Board cannot find that the Veteran filed a claim for service connection for CAD in 1997 or any time prior to June 30, 2003. See Brokowski, 23 Vet. App. at 84. The Board is grateful for the Veteran’s honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a). Unfortunately, the Board concludes that an earlier effective date is not warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.P. Armstrong