Citation Nr: 20003763 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 18-34 698 DATE: January 16, 2020 ORDER Entitlement to an effective date prior to September 2000 for the grant of service connection for coronary artery disease with bypass graft to include whether there is clear and unmistakable error in a July 2011 rating decision that awarded service connection. Whether there was clear and unmistakable error in a July 2011 rating decision that assigned an initial disability evaluation for coronary artery disease with bypass graft, rated as 10 percent disabling from January 1, 2001 to July 27, 2006; 30 percent from July 27, 2006 to August 21, 2006; and 30 percent from December 1, 2006 to August 8, 2010. FINDINGS OF FACT 1. The Veteran applied for entitlement to service connection for coronary artery disease in July 2003 and the RO denied the claim in a December 2003 rating decision. 2. VA reviewed the Veteran’s claim and sent notice of the Nehmer review to the Veteran in January 2010. 3. The RO granted service connection for coronary artery disease as due to exposure to Agent Orange in the Republic of Vietnam in a July 2011 rating decision with an effective date of September 15, 2000 and assigned an initial staged disability evaluation of 100 percent from September 15, 2000; 10 percent from January 1, 2001 to July 27, 2006; 30 percent from July 27, 2006 to August 21, 2006; 100 percent from August 21, 2006 to December 1, 2006; 30 percent from December 1, 2006 to August 2, 2010; and 100 percent from August 2, 2010. 4. The Veteran did not perfect an appeal of the July 2011 rating decision or submit additional evidence within one year. 5. The Veteran has not identified an error in fact or law in the July 2011 rating decision that awarded service connection for coronary artery disease and assigned initial staged ratings that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. CONCLUSIONS OF LAW 1. The criteria for an effective date for service connection prior to September 15, 2000 for coronary artery disease with bypass graft (Nehmer) to include as due to clear and unmistakable error in the July 2011 rating decision that granted service connection have not been met. 38 U.S.C. § 1155, 7105; 38 C.F.R. § 3.105, 3.155, 3.400. 2. The criteria for revision of the staged initial disability evaluations for coronary artery disease in the July 2011 rating decision based on clear and unmistakable error have not been met. 38 U.S.C. § 1155, 7105; 38 C.F.R. § 3.105, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1967 to November 1975 to include service in the Republic of Vietnam. 1. Coronary artery disease with bypass graft (Nehmer) The Veteran contends that the assigned disability ratings for the service-connected disability of coronary artery disease were clearly and unmistakably erroneous when assigned in the July 2011 rating decision by the RO or in the alternative claims an increased rating is warranted. After a thorough review of the evidence, the Board finds that the assigned ratings were not based on a clear and unmistakable error, and that entitlement to an earlier effective date or increased rating for the assignment of these disability ratings is not warranted. A determination that a prior determination involved clear and unmistakable error (CUE) involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40 (1993). A decision regarding CUE must be made on the basis of the law and evidence at the time of the decision at issue. Porter v. Brown, 5 Vet. App. 233 (1993). The Veteran initially applied for entitlement to service connection for heart condition in July 2003. The RO denied service connection in a December 2003 rating decision. Subsequently, the RO notified the Veteran in January 2010 that his claim was being reviewed under the Nehmer requirements. The term Nehmer class member includes Vietnam veterans who had diseases such as coronary artery disease that are presumptively service-connected based on exposure to herbicide agents. See 38 C.F.R. § 3.816(b)(1), (2). The RO granted the Veteran entitlement to service connection for coronary artery disease with bypass under the Nehmer provisions in a July 2011 rating decision with an initial effective date of September 15, 2000 at 100 percent due to the inference of a claim by way of treatment of the Veteran for a myocardial infarction at a VA medical center on that date. In the same decision, the RO assigned the coronary artery disease with bypass disability at a 10 percent disability rating from January 1, 2001; 30 percent from July 27, 2006; 100 percent from August 21, 2006 due to a subsequent myocardial infarction; 30 percent from December 1, 2006; and 100 percent from August 2, 2010. The Veteran did not perfect an appeal to this rating decision. Accordingly, the July 2011 rating decision is final. The Veteran is currently rated under Diagnostic Code 7017-7005 for coronary artery disease with bypass surgery at 100 percent since August 2, 2010. Diagnostic Codes 7005 and 7017 provide the following rating criteria: A 10 percent rating is assigned where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, syncope; or continuous medication is required. 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7017. A 30 percent rating is assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. Id. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for three months following hospital admission for coronary bypass surgery under DC 7017; or, as under DC 7005, for chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The Veteran submitted a written statement in August 2015 in which he stated he wished to claim a 100 percent rating between the years 2003 and 2008 for the heart disease disability. The Veteran stated that he went to a VA medical center in August 2001 for aortic aneurysm that was later operated on in 2003. The Board notes that the Veteran previously had filed a claim for aneurysm but withdrew the appeal in a written statement dated January 2012. The Veteran submitted an additional written statement in November 2015 in which he stated that he wished to claim a clear and unmistakable error had occurred in the previous determination from 2011 on the various assigned disability ratings which, in his contention, should have been at a 100 percent level from October 2000 to August 2010. The Veteran testified at a Board hearing in June 2019 that he thought his medical records justified a higher disability rating during the time period at which the coronary artery disease disability was rated at less than 100 percent and the Veteran provided additional evidence in and after 2015 of private medical records, e.g. showing METS of 1.0 in July 2008. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § § 3.400(b)(2)(i). In the present case, the Veteran’s case was reviewed under the Nehmer requirements and the RO granted entitlement to service connection in 2011 with an effective date in 2000 based on the Veteran’s admission to a VA medical center for a heart attack due to coronary artery disease, although the Veteran did not initially make a claim for the coronary artery disease until 2003. Coronary artery disease is covered under the presumptive provisions for Veterans who served during the Vietnam era in the Republic of Vietnam, while the various aneurysms noted in the Veteran’s medical records such as aortic and abdominal aneurysm, are not. 38 C.F.R. §§ 3.307, 3.309. The Veteran did not appeal that decision and it became final. The medical evidence of record prior to July 2011 includes treatment records documenting myocardial infarction in September 2000, August 2006, and a VA examination in August 2010 showing METs level of 1.0, consistent with the 100 percent ratings assigned from September 15, 2000, and from August 21, 2006, and from August 2, 2010. Over this same period, the Veteran’s medical records available prior to July 2011 show treatment for aortic and abdominal aneurysms. A July 2006 VA cardiac examination shows METs level of 6.0, consistent with the 30 percent disability rating assigned from July 27, 2006. These findings are consistent with the staged disability evaluations that were assigned in the July 2011 rating decision. The Board acknowledges that the Veteran has submitted additional evidence in the current appeal period that would have supported an increased disability rating between 2000 and 2010 for coronary artery disease with bypass. However, as that evidence was not part of the record at the time of the July 2011 rating decision, and the Veteran did not perfect an appeal to the prior decision, or provide the evidence within one year of the 2011 rating decision, the Board finds that the RO made a determination on the facts and evidence available to it at the time of the July 2011 rating decision that is consistent with the assigned disability ratings for the coronary artery disease with bypass disability prior to August 2010. Accordingly, the claim for higher ratings for service connection for coronary artery disease with bypass graft in excess of 10 percent from January 1, 2001, in excess of 30 percent from July 27, 2006, or in excess of 30 percent from December 1, 2006 to August 2, 2010, each to include as due to clear and unmistakable error, is denied. To the extent that the Veteran claims that an effective date for the grant service connection for coronary artery disease should be prior to September 15, 2000, the record does not contain any communication from the Veteran or his representative prior to that date that could be considered either a formal or information claim for service connection. Accordingly, the assignment of September 15, 2000 for the grant of service connection based on his admission to a VA facility for treatment of his cardiovascular disability is the appropriate effective date for the grant of service connection. The assignment of this date by the AOJ was not clearly and unmistakably erroneous. Thus, the appeal for an earlier effective date for the grant of service connection based on clear and unmistakable error is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Miller 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.