Citation Nr: 20021708 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-20 973 DATE: March 26, 2020 ORDER Entitlement to an earlier effective date for the temporary 100 percent evaluation assigned to status post-acute, subacute, or old myocardial infarction with coronary artery disease and status post stent placement is denied. REMANDED Entitlement to an increased rating for myocardial infarction in excess of 30 percent from August 22, 2013 to June 15, 2014 and in excess of 30 percent since October 1, 2014 is remanded. FINDING OF FACT The Veteran experienced a myocardial infarction on June 15, 2014. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the temporary 100 percent evaluation assigned to status post-acute, subacute, or old myocardial infarction with coronary artery disease and status post stent placement have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968. The Veteran’s service included a tour of duty in Vietnam. The Veteran was awarded a Silver Star, a Purple Heart Medal, and two Bronze Star Medals. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2014 and May 2017 rating decisions by the Department of Veterans Affairs (VA). The Board notes that the Veteran did not file a notice of disagreement regarding the December 2014 Rating Decision; however, he did submit new and material evidence within the applicable one-year period following notice of the December 2014 rating decision. In May 2017, the RO issued a rating decision that awarded the Veteran a temporary 100 percent rating effective from June 15, 2014. The rating decision also assigned an evaluation of 30 percent from October 1, 2014. 1. Entitlement to an earlier effective date for the temporary 100 percent evaluation assigned for status post-acute, subacute, or old myocardial infarction with coronary artery disease and status post stent placement effective from June 15, 2014 The Veteran contends that he should be awarded an earlier effective date for the award of his temporary 100 percent evaluation for a myocardial infarction. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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. With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one-year period prior to the date of the Veteran’s claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Board notes that the Veteran’s condition was rated according to Diagnostic Code 7006. According to Diagnostic Code 7006, a myocardial infarction, provides for a 100 percent rating “during and for three months following myocardial infarction, documented by laboratory tests.” See 38 C.F.R. § 4.104. On June 30, 2014, VA received the Veteran’s informal claim for entitlement to service connection for Ischemic Heart Disease (IHD). On August 22, 2014, VA received a Disability Benefits Questionnaire that was completed by the Veteran’s doctor. The Veteran’s doctor indicated that the Veteran experienced a myocardial infarction on June 16, 2014. On December 11, 2014, VA received private treatment records from the Veteran that showed he was treated for a myocardial infarction on June 15, 2014. The Board further notes that the record does not contain any evidence that the Veteran experienced a myocardial infarction prior to June 15, 2014. In sum, the Board finds that entitlement to an earlier effective date for the award of a 100 percent rating for a myocardial infarction is not warranted. After a review of the record, the Board finds that the medical evidence of record shows that the Veteran experienced a myocardial infarction on June 15, 2014. Based on this set of facts, the earliest date that could be assigned is the one already assigned to the Veteran’s disability. As a preponderance of the evidence is against entitlement to an earlier effective date for the claim, the benefit of the doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent from August 22, 2013 to June 15, 2014 and entitlement to a rating in excess of 30 percent since October 1, 2014 is remanded. A review of the record indicates that the Veteran last received an examination for his disability in April 2017. The Board notes that the available treatment records are inadequate to properly evaluate the severity of the Veteran’s condition. Accordingly, VA’s duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Thus, for the above stated reasons, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from June 4, 2019 to the present. 2. Schedule the Veteran for a VA examination in order to determine the severity of his heart condition. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, Associate 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.