Citation Nr: 20003452 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-49 477 DATE: January 21, 2020 ORDER Entitlement to an effective date earlier than October 15, 2016 for the grant of service connection for atherosclerotic cardiovascular disease is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents coincident with his service in Vietnam. 2. VA received the Veteran’s intent to file a claim on October 15, 2017, which was timely formalized by the Veteran’s initial claim for service connection for atherosclerotic cardiovascular disease on November 8, 2017. 3. The Veteran did not file a claim of entitlement to service connection for atherosclerotic cardiovascular disease or a claim that can be reasonably construed as a claim for service connection for such disability, prior to October 15, 2017. 4. The Veteran was not denied compensation for atherosclerotic cardiovascular disease between September 25, 1985 and May 3, 1989, and did not submit a claim for service connection for atherosclerotic cardiovascular disease between May 3, 1989, and August 31, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than October 15, 2016, for the grant of service connection for atherosclerotic cardiovascular disease have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1969 to June 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, an August 2018 rating decision assigned an earlier effective date for the grant of service connection for atherosclerotic cardiovascular disease based on clear and unmistakable error, effective October 15, 2016. Since the case the September 2018 Statement of the Case, additional evidence not relevant to the issue on appeal has been obtained and associated with the record. As a result, a waiver of initial Agency of Original Jurisdiction review is not necessary, and the Board may proceed with the claim. The Board acknowledges that the issues of entitlement to service connection for chest pain, a right shoulder condition, headaches, alcohol use disorder, entitlement to an initial rating in excess of 60 percent for atherosclerotic cardiovascular disease, entitlement to special monthly compensation (SMC) based on aid and attendance, SMC based on housebound status, and aid and attendance for E.V. have been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. Entitlement to an effective date prior to October 15, 2016 for the grant of service connection for atherosclerotic cardiovascular disease is denied. The Veteran asserts that an effective date prior to October 15, 2016, is warranted for the award of service connection for atherosclerotic cardiovascular disease as he has received treatment for his disability since August 6, 2003. See April and May 2018 Notice of Disagreement. The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 135 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records do not constitute informal claims when service connection has not yet been established for the condition. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). While the Veteran may have been diagnosed with atherosclerotic cardiovascular disease prior to October 15, 2016, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). However, retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. As applicable in this case, 38 C.F.R. § 3.114 provides that if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). 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 a 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,” including atherosclerotic cardiovascular disease. 38 C.F.R. § 3.816. 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, which, in this case is August 31, 2010. See 38 C.F.R. § 3.816(c)(1)-(3). Here, the Veteran served in the Republic of Vietnam during the Vietnam War era and has a diagnosis of for atherosclerotic cardiovascular disease. Accordingly, the Board concludes that the Veteran is a “Nehmer class member” as defined in the law. The Veteran was not denied compensation for atherosclerotic cardiovascular disease between September 25, 1985, and May 3, 1989. Further, he filed his original claim for service connection for atherosclerotic cardiovascular disease on October 15, 2017 after the August 31, 2010 effective date of the regulations establishing a presumption of service connection for atherosclerotic cardiovascular disease based on herbicide exposure. As the date the Veteran’s claim was received, October 15, 2017, is later than the date entitlement arose, August 6, 2003, the effective date of service connection must be October 15, 2017. As the Veteran’s claim was “reviewed at the request of the claimant” more than one year after the effective date of the applicable liberalizing law, benefits were authorized for a period of year prior to the date of receipt of the Veteran’s application to reopen. See 38 C.F.R. § 3.114. As such, the RO assigned the earliest possible effective date for its grant of the Veteran’s claim, October 15, 2016. The Veteran has not asserted that he filed a claim for service connection for atherosclerotic cardiovascular disease that had been previously denied. Further, there is nothing in the record to suggest that the Veteran communicated an intent to claim service connection for atherosclerotic cardiovascular disease prior to October 15, 2017. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert, supra. Consequently, the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and an effective date prior to October 15, 2016 is not warranted. 38 C.F.R. §§ 3.400, 3.816. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.