Citation Nr: 20004497 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-08 989 DATE: January 23, 2020 ORDER Entitlement to an effective date prior to September 25, 2006 for award of service connection for coronary artery disease, status post coronary artery bypass graft (CABG) is denied. FINDING OF FACT 1. The Veteran had served aboard naval ship on the brown waters of the Republic of Vietnam during the Vietnam era, and therefore is presumed to have had in-service exposure to herbicides, including Agent Orange. 2. Service connection for coronary artery disease was granted in a July 2014 rating decision, effective September 25, 2006. 3. The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for coronary artery disease prior to September 25, 2006. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 25, 2006 for award of service connection for coronary artery disease, status post coronary artery bypass graft (CABG) have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.160, 3.400, 3.816 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1968 to August 1970. 1. Entitlement to an effective date prior to September 25, 2006 for award of service connection for coronary artery disease, status post coronary artery bypass graft (CABG) The Veteran seeks entitlement to assignment of an effective date prior to September 25, 2006 for award of service connection for coronary artery disease. Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication 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). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Prior to March 24, 2015, VA recognized formal and informal claims. [Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO.] A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). An informal claim may be any communication or action, indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the general rule for effective dates. 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). As this claim involves coronary artery disease, which is a disease that is identified under 38 C.F.R. § 3.309 (e) as one that is associated with exposure to certain herbicide agents, there is a more detailed discussion of the Nehmer guidelines below. The Veteran contends that an effective date earlier than September 25, 2006 for the award of service connection for coronary artery disease is warranted. The Veteran asserted that an earlier effective date was warranted for coronary artery disease, as he was first diagnosed with ischemic heart disease in May 2002. See February 2017 substantive appeal, VA Form-9, and November 2019 Board hearing transcript. The Veteran separated from active service in August 1970. In February 2014, he filed a formal claim for service connection for coronary artery disease. As he did not submit a claim of entitlement to service connection for coronary artery disease within one year of service discharge, assignment of an effective date back to the day following his service discharge is not possible. Prior to the formal claim for service connection for coronary artery disease filed in February 2014, the Veteran had submitted a claim on September 25, 2006 for bilateral hearing loss and tinnitus. Medical records received in conjunction with this claim showed that the Veteran had a diagnosis of coronary artery disease. In Criswell v. Nicholson, 20 Vet. App. 501 (2006), the Court concluded that a report of examination or hospitalization will be accepted as an informal claim for benefits only once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. See also Brannon v. West, 12 Vet. App. at 35 (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). As such, in a rating decision issued in July 2014, the RO accordingly granted service connection for coronary heart disease, effective to the earlier date of September 25, 2006. The Board has considered whether any evidence of record prior to September 25, 2006, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran prior to September 25, 2006 indicates an attempt to apply for service connection for coronary artery disease. However, no document submitted prior to this date indicates intent to pursue a claim of entitlement to service connection for coronary heart disease. As noted above, a report of examination or hospitalization will be accepted as an informal claim for benefits only once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Although some of the Veteran’s medical records prior to September 2006 document treatment for coronary heart disease, such medical records cannot constitute an initial claim for service connection as no intent to file a claim prior to September 25, 2006 was noted. See Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon, supra (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). VA regulations unequivocally state that the effective date of benefits cannot be earlier than the filing of an application. 38 U.S.C. § 5110 (a); see Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Therefore, the RO granted the earliest effective date for a grant of service connection for coronary artery disease that the law allows. Moreover, while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by the claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra, Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is no legal entitlement to an earlier effective date for the award of service connection for coronary artery disease. While the Veteran’s coronary artery disease was first diagnosed a few years prior to September 2006, the regulations provide that the appropriate effective date is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). In the instant case, given the governing legal authority, based on these regulations, the effective date has been appropriately assigned as the date of claim. While has considered the Veteran’s assertion that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to September 25, 2006, for the grant of service connection for coronary artery disease. As there is no evidence of VA receipt of a claim, formal or informal, for service connection for coronary artery disease prior to September 25, 2006, more than a year after the Veteran’s separation from active service, the award of service connection for such disability may be no earlier than September 25, 2006. Therefore, the Veteran’s claim for an earlier effective date for the award of service connection for coronary artery disease must be denied. The Board has also considered whether an earlier effective date can be provided based on the application of a liberalizing law. As discussed above, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement 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. In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. Effective August 31, 2010, VA added ischemic heart disease, to include coronary heart disease, to the list of presumptive diseases associated with herbicide exposure. 75 Fed. Reg. 53, 216 (Aug. 31, 2010); 38 C.F.R. § 3.309 (e). It was noted in the Federal Register that VA may pay benefits for periods prior to the effective date in certain circumstances which are set forth in detail in 38 C.F.R. § 3.816 (c) and (d), which implement a stipulation and various court orders in the Nehmer class action litigation. 75 Fed. Reg. 53, 216 (Aug. 31, 2010). The Board notes that 38 C.F.R. § 3.816 was revised to include ischemic heart disease as a covered herbicide disease. 78 Fed. Reg. 54, 766 (Sept. 6, 2013). 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. See 38 C.F.R. § 3.816 (c)(1)-(3). Under 38 C.F.R. § 3.816 (c)(2), if the class member’s claim was received between May 3, 1989 and the effective date of the liberalizing law, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as provided in paragraph (c)(3) of this section. See 38 C.F.R. § 3.816 (c)(2). A claim will be considered a claim for compensation if the claimant’s application or other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or VA issued a decision on the claim between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. § 3.816 (c). The Veteran’s VA and private treatment records reflect a diagnosis of coronary artery disease in May 2002. As noted above, ischemic heart disease, to include coronary artery disease, was added to the list of disorders for which service connection may be granted on a presumptive basis for Veterans exposed to Agent Orange during service effective August 31, 2010. The Board has considered the Veteran’s assertion that he is entitled to an effective date reflecting his diagnosis of coronary artery disease in 2002. The dispositive fact in this matter is the date when VA concedes that the Veteran first filed a claim seeking service connection for coronary artery disease. VA has identified September 25, 2006 as the date of the Veteran’s claim for service connection for coronary artery disease. The record does not show that he had a pending claim of service connection for coronary artery disease between May 1989 and September 25, 2006. The record also does not show that the Veteran had a claim of service connection for coronary artery disease denied between September 1985 and May 1989. Furthermore, his claim was not received within a year following his separation from service. Consequently, the liberalizing provisions under Nehmer do not apply in the instant case. Although VA and private treatment records show that the Veteran had a diagnosis of coronary artery disease as of May 2002, the diagnosis itself does not qualify as an informal claim for service connection, as it does not identify service connection for coronary artery disease as a benefit sought. As previously discussed, the effective date of an award of service connection is not based on the earliest medical evidence showing a diagnosis of the disability, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Board acknowledges the Veteran’s contentions that he was unaware that he could file for VA compensation prior to 2006, however, the pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Since the Veteran is not shown to have filed a formal or informal application for service connection for coronary artery disease prior to September 25, 2006, VA is precluded from granting an effective date for the award of service connection for coronary artery disease prior to this date. Hence, an earlier effective date in accordance with liberalizing law or the Nehmer guidelines is not warranted. See 38 C.F.R. § 3.816 (c)(1), (c)(2). As such, the Board finds the currently assigned effective date of September 25, 2006 is the earliest effective date allowable for the grant of service connection for coronary artery disease and the claim for an effective date prior to September 25, 2006 for the grant of service connection is denied. 38 C.F.R. § 3.400 (b)(2)(i). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.