Citation Nr: 19107415 Decision Date: 01/31/19 Archive Date: 01/30/19 DOCKET NO. 16-46 781 DATE: January 31, 2019 ORDER Entitlement to an effective date of December 23, 2009, and no earlier, for service connection for coronary artery disease (CAD) with valvular heart disease is granted. FINDING OF FACT The earliest date upon which VA was in constructive possession of evidence showing the Veteran’s CAD with valvular heart disease had manifested to a compensable degree is December 23, 2009. CONCLUSION OF LAW The criteria for an effective date of December 23, 2009, and no earlier, have been met for service connection for CAD with valvular heart disease. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 3.816 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1969 to January 1971, and his DD 214 shows that he served in the Republic of Vietnam from April 1970 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. An April 2015 rating decision granted service connection for CAD with valvular heart disease, effective July 17, 2014. The Veteran disagrees with the effective date assigned. In December 2017, the Board issued a decision that denied the Veteran’s claim for an effective date prior to July 17, 2014 for service connection for CAD with valvular heart disease. The Veteran appealed the Board’s December 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, pursuant to a June 2018 Joint Motion for Remand, the Court vacated the Board’s December 2017 decision, and remanded the matters to the Board for further action. Entitlement to an effective date prior to July 17, 2014 for service connection for CAD with valvular heart disease. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant’s discharge from service, shall be 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)(2)(i). The effective date, “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). Where compensation is awarded pursuant to a liberalizing law, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or regulation. 38 U.S.C. § 5110(g) (2012); 38 C.F.R. § 3.114(a) (2018). If a claim is reviewed at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the liberalized law provided the claimant met all eligibility criteria on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. 38 C.F.R. § 3.114(a). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. That is, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of the 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” See 38 C.F.R. § 3.816. The Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a “Vietnam veteran” as defined in the regulation. See 38 C.F.R. § 3.307(a)(6). According to 38 C.F.R. § 3.816(b)(2) a “covered herbicide disease” includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne as provided in 38 C.F.R. § 3.309(e). Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease 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; or if the class member’s claim was received within one year from the date of the class member’s separation from service. See 38 C.F.R. § 3.816(c)(1)-(3). If the requirements of 38 C.F.R. § 3.816(c)(1)-(3) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114, 3.400. See 38 C.F.R. § 3.816(c)(4). The Veteran’s initial claim for VA compensation, for sinusitis, was received on March 3, 1971, and made no mention of heart disease. As observed in footnote one of the Veteran’s former representative’s November 8, 2017 Informal Hearing Presentation, there was no written claim for service connection for heart disease (a copy of the Veteran’s original heart condition claim could not be located in the record), but in light of later medical information the RO construed the March 3, 1971 claim to include service connection for a heart condition. In December 1971, the RO issued a rating decision which denied service connection for a heart condition. The Veteran did not appeal that decision. No additional service records have been received and no relevant VA records were received within one year of the December 1971 rating decision. In VA Form 21-4138, Statement in Support of Claim, received on November 7, 2002, the Veteran claimed service connection for headaches as a residual of inservice head trauma. Pursuant to a mandate of a decision by a federal court, the RO reviewed the Veteran’s claim. Thereafter, a September 2011 rating decision denied service connection for ischemic heart disease (IHD). That rating decision was conducted pursuant to a federal Court order and, therein it was stated the Veteran’s VA Form 21-4138, Statement in Support of Claim, received on November 7, 2002, in which he claimed service connection for head trauma and headaches, was accompanied by VA outpatient treatment records from 2001 to 2002 which indicated a diagnosis of hypertensive heart disease. Thus, the RO accepted the November 7, 2002, VA Form 21-4138, as the date of claim for ischemic heart disease for the purpose of the Nehmer review. The Veteran was notified of the September 2011 denial of service connection for IHD by RO letter of September 21, 2011. In VA Form 21-4138, Statement in Support of Claim, received on November 15, 2011, signed by the Veteran’s wife (who had been appointed as his guardian following his having been determined to be incompetent) it was stated that “I disagree with all issues on your letter dated “9-21-11” and she requested a review of the claim by a Decision Review Officer. A May 19, 2014 statement of the case (SOC) was issued addressing entitlement to retroactive benefits under Nehmer for the issue of service connection for ischemic heart disease. Thereafter, on July 17, 2014, and within 60 days of the SOC, correspondence was received in the form of VA Form 21-4138, Statement in Support of Claim, in which it was stated that the correspondence was in reference to the May 19, 2014 “letter” [actually the SOC as there was no other correspondence of that date]. It was stated that a doctor had reported that the Veteran had IHD. Attached was a report, dated July 14, 2014, from Dr. C.Q. in which it was reported that the Veteran’s diagnoses included hypertensive cardiovascular disease and CAD. By letter of August 12, 2014, the RO stated that it was working on the Veteran’s claim and proceeded to provide the Veteran with notification of the respective duties of VA in providing notice and assistance under the Veterans Claims Assistance Act. Thus, the RO accepted the correspondence of July 17, 2014 as an application to reopen a claim for service connection for ischemic heart disease. This also means that, at least implicitly, the RO did not accept the July 17, 2014 correspondence as a substantive appeal which would have perfected an appeal from the September 2011 RO denial of service connection for IHD. The facts of this case require that the Board address whether an appeal was perfected from the September 2011 rating denial of service connection for IHD. As to this, it is unquestioned that an appeal was initiated from that rating decision in a timely manner. Also, it is clear that the correspondence received on July 14, 2014 was within the 60 days following the May 19, 2014 SOC, albeit more than one year of the September 21, 2011 notification of the denial of that claim. Under 38 C.F.R. § 20.302(b), an appeal is perfected in a timely manner if a substantive appeal is filed within one year of notification of the action appealed or within 60 days of the issuance of an SOC. Thus, it must be determined if the correspondence of July 17, 2014 constituted a substantive appeal. In this regard, 38 C.F.R. § 20.202 states that a substantive appeal consists of either a completed VA Form 9, Appeal to the Board of Veterans’ Appeals, or “correspondence containing the necessary information.” Because the July 17, 2014 correspondence directly referenced the May 2014 SOC, and contained a copy of a page from that SOC, and provided accompanying medical evidence relevant to the issue addressed in the SOC, it constitutes the equivalent of a VA Form 9 and, as such, was a valid substantive appeal. Thus, a timely appeal was perfected from the September 2011 rating decision. The April 2015 rating decision which is appealed granted service connection for CAD with valvular heart disease and assigned an initial 60 percent disability rating, all effective the date of receipt of claim of July 17, 2014. In this case, the assigned effective date for the grant of service connection for the Veteran’s CAD is July 17, 2014, the date VA received the Veteran’s correspondence in reference to the May 2014 SOC with accompanying private treatment report dated April 2011 reflecting that the Veteran had CAD. The Veteran, through his representative, argues in a November 2018 written submission, that the record does not contain a notice letter of the December 1971 rating decision mailed to the Veteran. The representative, therefore ,states that absent evidence of proper notice, the December 1971 rating decision cannot be final and the claim remained pending on May 3, 1989. The representative further argues that as such, the requirements of 38 C.F.R. § 3.816(c)(2), (3) are met, the service connection should be granted effective from “the day following the date of […] separation from active service,” which is January 25, 1971 in this case. However, even if the Veteran never received notification of the December 1971 rating decision, the Board finds that no claim of service connection for IHD was received by VA within one year of the Veteran’s separation from service. As discussed above, the Veteran’s March 1971 claim did not mention any heart condition, and the evidence of record did not show any IHD at that time. A September 23, 1971 VA general medical examination found that the Veteran’s cardiovascular system was normal and without evidence of heart disease. He had no complaints referable to his cardiovascular system. No clinical records prior to July 2014 indicate any intent on the part of the Veteran to apply for service connection for valvular heart disease, coronary artery disease or any other form of recognized ischemic heart disease. Where a claimant has not previously been granted service connection, VA’s receipt of medical records cannot be construed as an informal claim. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. Brannon v. West, 12 Vet. App. 32, 34 - 35 1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, there was no such claim prior to July 2014. Even if the Veteran initiated a claim for service connection for an unspecified heart disability within one year from his separation from service, initial entitlement to presumptive service connection under the Nehmer provisions is predicated upon the Veteran satisfying the criteria set forth in 38 C.F.R. § 3.309(e). This regulation states presumptive service connection is warranted for a veteran who was exposed to an herbicide agent, and subsequently develops one of the diseases listed in that provision. However, an important caveat is that 38 C.F.R. § 3.309(e) indicates the requirements of 38 C.F.R. § 3.307(a)(6) must also be met. Pursuant to 38 C.F.R. § 3.307(a)(6)(ii), the diseases listed in 38 C.F.R. § 3.309(e) must have “become manifest to a degree of 10 percent or more.” As such, the central issue that must be addressed in this matter is whether the evidence of record for the period prior to July 17, 2014, establishes that the Veteran manifested CAD to a compensable degree. Concerning this, the Veteran submitted an October 2018 private medical opinion from S. D.-P. stating that the Veteran’s aortic valve disease and CAD more likely than not manifested within one year of the Veteran’s departure from military service, based on his medical history of chest pain and syncope-like episode occurred in service, which was interpreted as MI as well as recurrent and long history of excise related angina, fatigue and dyspnea. However, assuming the onset of the Veteran’s CAD was in service, this conclusion would not of itself result in the presumptive establishment of service connection to the date following discharge. Rather, the disability must be shown to have manifested to a compensable degree. In sum, the evidence must establish not only a manifestation of the disability, but must also indicate the condition warranted a compensable disability rating. The Veteran’s CAD is evaluated under 38 C.F.R. § 4.107, Diagnostic Code 7005. Pursuant to that Code, a compensable rating may be assigned if there is a workload of 10 METs or less; cardiac hypertrophy or dilatation shown by electrocardiogram, echocardiogram, or X-ray; left ventricular dysfunction with an ejection fraction (EF) of 50 percent or less; congestive heart failure is present; or where continuous medication required. The Board has carefully reviewed the Veteran’s entire claims record; however, there is no evidence establishing the Veteran’s disability had manifested to a compensable degree at the time of the December 1971 rating decision. Therefore, criteria for an earlier effective date to the day following the Veteran’s release from active duty have not been met. 38 C.F.R. § 3.816(c)(1)-(3). The question remains whether the evidence warrants an effective date prior to July 17, 2014. Here, the Veteran’s case falls within the parameters of 38 C.F.R. § 3.816(c)(2). Thus, under § 3.816(c)(2) the effective date is the later of the date claim was received (in this case November 2002) or the date the entitlement arose. Although the private physician opined in October 2018 that the onset of the Veteran’s CAD was many years before the first diagnosis was made in 2009, the first evidence of record establishing the disease’s manifestation to a compensable degree is December 23, 2009. Specifically, the August 2011 VA examination report indicated that there was evidence of cardiac hypertrophy or dilatation found on echocardiogram performed on December 23, 2009. There is no evidence which would warrant a finding of entitlement to an effective date prior to December 23, 2009. Because the date of the claim (November 2002) predates the date when the entitlement is factually ascertainable, the effective date must be the date entitlement arose, December 23, 2009- the later of the two. Based on these facts, no effective date for the award of service connection for CAD with valvular heart disease earlier than December 23, 2009, is assignable. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. J. In, Counsel