Citation Nr: 20011797 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 12-12 284 DATE: February 13, 2020 ORDER Entitlement to an earlier effective date of October 20, 2009 for the grant of service connection for coronary artery disease (CAD) is granted. Entitlement to an initial rating in excess of 30 percent for CAD is denied. FINDINGS OF FACT 1. The Veteran filed an initial claim for entitlement to service connection for a heart condition received on April 16, 2010. 2. The earliest evidence of the Veteran’s CAD was October 20, 2009. 3. The Veteran’s CAD was productive of a workload greater than 5 METs, but was manifested by an episode of acute congestive heart failure, or left ventricular dysfunction with an ejection fraction (LVEF) less than 50 percent. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for the grant of service connection for CAD are met. 38 U.S.C. § 5107, 5110 (2012); 38 C.F.R. § 3.114, 3.151, 3.155, 3.400, 3.816 (2018). 2. The criteria for an initial rating in excess of 30 percent for CAD have not been met. 38 U.S.C. § 5107, 1155 (2012); 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1970. He died in July 2010. The appellant is his surviving spouse. The appellant was substituted for the Veteran for the purpose of this appeal. See 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010 (2018). The Board notes that in August 2010, the appellant submitted a form VA 21-22 appointing the Military Order of the Purple Heart (MOPH) as her representative. Then, in a November 2012 VA Form 21-22, the appellant appointed Disabled American Veterans (DAV) as her representative. The form was not signed by DAV. In September 2018, the Board sent the appellant a letter requesting clarification on representation on whether she wished to be represented by MOPH. If the appellant wished to be represented by a different agent or representative, the letter instructed her to submit a valid appointment. She was further informed that if no response was received in 30 days, the Board will assume that she wishes to represent herself. Given that no response was received, the case will proceed accordingly and the appellant is in pro se status. 1. Entitlement to an effective date earlier than April 16, 2010 for the grant of service connection for CAD. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Some exceptions to 38 C.F.R. § 3.400 exist. First, if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Moreover, if a claim is reviewed, upon the Veteran’s request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff’d 106 F.3d 1577 (Fed. Cir. 1997). A second exception to the regulations regarding effective dates for disability compensation involves those veterans who qualify as eligible under 38 C.F.R. § 3.816. See also, Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a “covered herbicide disease.” See 38 C.F.R. § 3.816 (b). The Board finds that because service connection for CAD was granted based on the Veteran’s presumed exposure to herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as contemplated under 38 C.F.R. § 3.816(b). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, which in this case is August 31, 2010. In these situations, the effective date of the award will be the later of the date VA received such claim or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). VA added ischemic heart disease (IHD) as a presumptive disability on August 31, 2010. Pursuant to 38 C.F.R. § 3.309(e), IHD includes CAD. As such, the issue is whether VA received a claim for CAD between May 3, 1989 and August 31, 2010. The Nehmer Training Guide (NTG), which VA published in 2011, is instructive here. Specifically, the NTG cites multiple forms a claim can take for Nehmer purposes (p. 18-19). Of particular importance is the following passage: It is not the case that medical records alone constitute a claim for Nehmer purposes. However, it is a rule that if, at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now covered condition (e.g., IHD), then the condition is considered to have been part of the previously denied claim. It may help to think about it this way: If a presumption of service connection for IHD existed at the time of a prior RO decision on a different disability, would VA have inferred and granted [service connection] for IHD because it then had evidence of the disease? If so, then we assume for Nehmer purposes, that the prior claim included a claim for IHD, even if it was not expressly claimed at the time. This is what equates to medical records confirming a diagnosis of a presumptive disease qualifying as a claim for Nehmer purposes (p. 19). The appellant argues that an earlier effective date of October 20, 2009, the date the Veteran was diagnosed with CAD, under Nehmer is warranted. She contends that because the Veteran filed a March 2004 application for service connection for posttraumatic stress disorder (PTSD), an earlier effective date for CAD is warranted because VA treatment records showing a diagnosis of CAD were available at the time service connection for PTSD was granted in a February 2010 rating decision. VA treatment records document that the Veteran underwent a myocardial exercise-rest perfusion study on October 20, 2009. The findings included mild -moderate basal inferolateral ischemia. A cardiac catheterization procedure from December 2009 include findings of 50 percent ostial disease on the right side. The Board concludes that there are findings in VA treatment records from October 20, 2009 diagnostic studies that indicate CAD. On April 16, 2010, VA received the Veteran’s claim for entitlement to service connection for a heart condition. A claim for a heart condition was not filed prior to this date. However, the Veteran did file a formal claim for PTSD on March 26, 2004. This date is important, as the NTG explains: [Medical records] do not constitute a claim by themselves, but if [VA has] such medical records at the time [VA receives] a separate [service connection] claim, then the condition shown by the medical records is part of that claim. Accordingly, for effective-date purposes, they should be considered part of whatever claim was the subject of the rating decision (p. 19-20). Applying the two NTG excerpts, the Board finds that: 1) the Veteran had CAD in October 2009 based on diagnostic tests, and 2) the Veteran filed his PTSD claim in March 2004. In developing the PTSD claim, which VA subsequently granted in a February 2010 rating decision, VA received medical records showing a diagnosis of CAD. The NTG cites an example which demonstrates why the timing of the receipt of these records is immaterial: The Veteran filed a claim for service connection for a psychiatric condition in 1990. In developing the claim, VA receives medical records showing a diagnosis of IHD. VA denies the claim in 1991. Under [Nehmer] footnote 1, IHD is deemed part of the 1990 claim, and the effective date may be the later of the date of that claim or date disability arose. This instruction applies if the IHD records were incorporated into the record after the psychiatric was originally adjudicated; if for example, the claimant appealed that issue and submitted the IHD records in the course of the appeal (p. 20). Given the foregoing, the effective date for the Veteran’s grant of CAD is the date VA received the claim or the date entitlement arose, whichever is later. Applying the NTG to the facts above, VA is deemed to have received the Veteran’s claim on March 26, 2004. The date entitlement arose is October 20, 2009 based on diagnostic evidence of CAD. Thus, as the later of the two dates is the date entitlement arose, October 20, 2009 is the appropriate effective date for the award of CAD benefits. 2. Entitlement to an initial rating in excess of 30 percent for CAD. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). In an August 2011 rating decision, the AOJ granted service connection for CAD, pursuant to Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989). The CAD disability is rated 30 percent disabling, effective April 16, 2010 to July [REDACTED], 2010 date of death, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). Under Diagnostic Code 7005, a 30 percent rating is warranted if the workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating, is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for LVEF of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. The maximum schedular rating of 100 percent is warranted for chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for LVEF of less than 30 percent. Id. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). October 2009 VA treatment records contain a myocardial exercise-rest perfusion study. The Veteran’s estimated METs level was 7. The test was stopped for leg cramping. No EKG changes were noted. LVEF was 54 percent, normal. The treating physician concluded that the myocardial exercise test was abnormal with moderate workload of 7 METs and near maximal peak rate pressure product. The findings demonstrated mild to moderate basal inferolateral ischemia. In December 2009 a diagnosis of CAD was confirmed, and a planned procedure of cardiac catheterization was recommended. During the consultation, the Veteran’s heart condition was described as having a mild perfusion defect, and he was referred to catheterization for further evaluation. An angiography showed 50 percent ostial disease. April 2010 VA treatment records document the Veteran’s report of fatigue, and dyspnea on exertion with stairs. During a June 2010 VA arteries and vein examination, on physical examination the Veteran’s chest was clear to auscultation and heart had a regular rate and rhythm with no murmurs. During a June 2010 VA diabetes examination, a cardiac exam showed regular rate and rhythm, but decreased pulses in the right lower extremity. The Veteran did not participate in a VA heart examination. A certificate of death indicates that the Veteran died on July [REDACTED], 2010. Based on the above, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran’s CAD. The evidence fails to demonstrate more than one episode of acute congestive heart failure in the past year, workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent, as required for the next higher rating. On the contrary, October 2009 VA treatment records estimated the Veteran’s METs level at 7 and his LVEF was calculated above 50 percent as normal. The Board has considered Diagnostic Code 7017, which is for application for coronary bypass surgery. A 100 percent rating is assigned for three months following hospital admission for surgery. However, there is no indication that the Veteran underwent a coronary bypass procedure. In light of the above, the Board finds that the preponderance of the evidence is against an initial rating in excess of 30 percent for CAD. Since the evidence is not in equipoise, the provisions of 38 U.S.C. § 5107(b) regarding resolution of reasonable doubt are not applicable. The Board has considered whether referral for an extraschedular rating is warranted for the period on appeal. The Board finds that the Veteran’s symptoms associated with his CAD, to include symptoms of fatigue and dyspnea are governed by the schedular rating criteria. Neither the facts of the case nor the Veteran’s or appellant’s allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board”) (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007); see also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Baker, 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.