Citation Nr: 20030953 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 13-16 585 DATE: May 4, 2020 ORDER Entitlement to an effective date earlier than February 10, 2010, for the grant of service connection for ischemic heart disease (IHD), to include as due to exposure to an herbicide agent, is denied. FINDINGS OF FACT 1. Ischemic heart disease (IHD) was added to the list of diseases that are presumed associated with exposure to certain herbicide agents effective August 31, 2010. 2. The Veteran filed a claim for service connection for IHD on November 17, 2011. 3. In September 1967, the Veteran filed a claim for service connection for gunshot wound residuals, which was granted; there was no heart disease diagnosis at that time. 4. On February 10, 2010, the Veteran filed a service connection claim for diabetes, which was granted; at that time medical evidence confirmed a diagnosis of IHD. 5. No claim for service connection for any disability was received or inferred, and no claim for service connection for any disability was denied, between the Veteran’s September 1967 claim and his February 10, 2010, claim, and after VA and private medical records showed a diagnosis of IHD in October 2000. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 10, 2010, for service connection for IHD are not met. 38 U.S.C. §§ 5110(a), 5101(a) (2014 & 2019); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.157, 3.400, 3.816 (2014 & 2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from November 1965 to August 1967, including in Vietnam. He was awarded the Purple Heart Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision that awarded service connection for IHD, effective November 17, 2010. The Veteran testified at a Travel Board hearing in February 2016 before the undersigned Veterans Law Judge. In July 2016, the Board issued a decision denying an effective date earlier than November 17, 2010, for service connection for IHD. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), which vacated and remanded the 2016 decision in an August 2017 Order pursuant to a Joint Motion for Remand (JMR). A November 2017 rating decision awarded an earlier effective date of February 10, 2010, for IHD based on a special Nehmer review. In a February 2018 decision in response to the initial JMR, the Board denied an effective date earlier than February 10, 2010. The Veteran again appealed to the Court, which remanded the case in a September 2019 Order pursuant to a JMR. 1. Effective date earlier than February 10, 2010, for service connection for IHD, to include based on exposure to an herbicide agent The Veteran contends that the effective date for service connection for his IHD should be October 22, 2000, the date of his diagnosis and surgery, applying the special Nehmer rules. See, e.g., August 2012 notice of disagreement; October 2017 and December 2019 attorney arguments; July 2017 and September 2019 JMRs. The 2017 JMR stated that the 2016 Board decision did not address the significance of VA and private treatment records as early as October 2000 showing a diagnosis coronary artery disease status-post coronary artery bypass graft (CABG), or IHD. The 2019 JMR then stated that the 2018 Board decision did not address the additional arguments submitted by the Veteran’s attorney in October 2017 that VA treatment records dated in 1996 should result in an effective date as early as January 2001 under footnote 1 of the Nehmer 1991 Final Stipulation and Order. Specifically, the Veteran asserts that records of VA treatment on April 9, 1996, and October 15, 1996, for an exacerbation of the Veteran’s service-connected left brachial plexus disability, constituted a pending unadjudicated informal claim for an increased rating for that disability under then in-effect 38 C.F.R. § 3.157(b)(1) and the doctrine of constructive possession of VA treatment records. [The 2017 attorney arguments stated that these records were located at pages 2859-2860 of the Record Before the Agency (RBA), but they are actually at RBA 5888-5889.] VA treatment records dated in January 2001 then noted a diagnosis of IHD in October 2000. The Veteran contends that under footnote 1 of the Nehmer 1991 Final Stipulation and Order, the still pending claim for an increased rating for left brachial plexus injury included an inferred service connection claim for IHD. The Board has considered the private and VA treatment records from October 2000 and January 2001 with notations of a diagnosis of IHD, as well as the April 1996 and October 1996 records of VA treatment for the Veteran’s service-connected left brachial plexus disability, or left shoulder gunshot wound residuals with nerve damage. However, as explained below, considering the text of footnote 1, along with the non-binding but persuasive information as to application of footnote 1 in the VBA Nehmer Training Guide (part of Training Letter 10-04), the Board finds that footnote 1 does not apply to any potential pending claim for increased rating; rather it applies only to a claim for service connection for another disability that was previously denied. Moreover, the 1996 records do not constitute a claim for an increased rating. Therefore, this provision does not allow for an earlier effective date in this case. Instead, the correct effective date for the Veteran’s IHD is February 10, 2010. General Effective Date and Claim Rules As relevant to this appeal, in general, the effective date of a rating and award of compensation based on an original claim that is received more than one year after separation from service will be the date the claim was received or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. During the pendency of this appeal, effective prior to March 24, 2015, VA recognized formal and informal claims. A claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). An informal claim was any communication or action indicating intent to apply for one or more benefits, and it must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In effect prior to March 24, 2015, 38 C.F.R. § 3.157 provided that VA would recognize an informal claim based on information in treatment records under certain circumstances. Once a formal claim for pension or compensation was allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt one of the following would be accepted as an informal claim for increased benefits or an informal claim to reopen. As relevant to this case, the date of VA outpatient treatment or hospital examination or admission was accepted as the date of receipt of a claim when such reports related to the examination or treatment of a disability for which service-connection had previously been established or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(a), (b)(1) (2014). As noted in the rulemaking that eliminated § 3.157, this regulation provided for the “constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen.” 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014); see also Pacheco v. Gibson, 27 Vet. App. 21, 24-30 (2014) (en banc) (concerning when treatment records may constitute a claim to reopen); Massie v. Shinseki, 25 Vet. App. 123 (2011), aff’d, 724 F.3d 1325 (Fed. Cir. 2013) (concerning when treatment records may constitute a claim for an increase). Such records would not constitute an initial claim for service connection unless the document also met the requirements for a claim under 38 C.F.R. §§ 3.1(p) and 3.155. The mere presence of medical evidence or a diagnosis of a disability does not establish intent on the part of the Veteran to seek service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date the claim upon which service connection is eventually awarded was received by VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA may be charged with constructive possession and knowledge of VA medical records generated prior to its decision in a claim decided after 1992. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam order); Damrel v. Brown, 6 Vet. App. 242, 246 (1994); but see Turner v. Shulkin, 29 Vet. App. 207 (2018) (clarifying that a VA Regional Office must have sufficient knowledge of the existence of VA treatment records to trigger constructive receipt of such records). Nehmer Effective Date and Claim Rules For earlier effective date claims for diseases presumed to be caused by herbicide agent exposure, VA has issued special regulations based upon a liberalizing law. IHD was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). In general, if a claim is reviewed within one year from the effective date of a liberalizing law or VA issue, benefits may be authorized from the effective date of a liberalizing law or VA issue. 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p). For service connection for diseases presumed to be caused by herbicide agent exposure, 38 C.F.R. § 3.816 provides special effective date rules to implement the orders of a U.S. district court in a class action suit: Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991) (Final Stipulation and Order). See Nehmer v. United States Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov’t of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). In this case, the Veteran qualifies as a Nehmer class member. He is presumed to have been exposed to herbicide agents during his Vietnam service from 1965 to 1967, and he has a covered herbicide disease of IHD. 38 C.F.R. § 3.816(b)(1). As the Veteran is entitled to disability compensation for IHD, the following effective date rules apply: If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989, the effective date will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. 38 C.F.R. § 3.816(c)(1). If a claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (here, August 31, 2010), the effective date will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). If the claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the Veteran’s separation from service, the effective date will be the day following the date of separation from active service. 38 C.F.R. § 3.816(c)(3). If the requirements of paragraph (c)(1) or (c)(2) are not met, the effective date of the award will be determined in accordance with §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). 38 C.F.R. § 3.816(c)(2) further states that a claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) the claimant’s application and other supporting statements and submission 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 (ii) 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 (here, August 31, 2010, for IHD), 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. Id. In addition to 38 C.F.R. § 3.816, as noted in the 2017 JMR, although medical records alone do not constitute a disability compensation claim, if VA received medical records documenting the diagnosis of a disease that is now a presumptive condition, then the special Nehmer effective date rules may apply. The JMR cited to Veterans Benefits Administration (VBA) Nehmer Training Guide (rev. Feb. 10, 2011) for this proposition, which is Attachment 3 to VBA’s Training Letter 10-04, and which discusses footnote 1 of the Nehmer 1991 Final Stipulation and Order. VBA’s Training Letter 10-04 has been rescinded due to incorporation in the M21-1 as part of the “Live Manual” project, and VBA Training Letters and adjudication manual, including the M21-1, are not binding on the Board. However, the Board will consider its contents and explanation of the history of these types of claims. The Nehmer Training Guide explains the application of footnote 1 as follows: 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.… This is what equates to medical records confirming a diagnosis of a presumptive disease qualifying as a claim for Nehmer purposes. VA rarely receives medical records unassociated with any claim, or wherein a rating decision has not subsequently been issues at some point in the record. This rule results from footnote 1 of the Nehmer stipulation (See Appendix 18). The footnote says, in effect, that prior VA decisions are deemed to have denied SC [service connection] for any condition that paragraph 46.02 of the M21-1 (in 1991) required to be coded in the rating decision. At that time, the M21-1 said that the rating decision should identify and “code” each diagnosis shown by medical records even if not claimed. For example, if the RO [Regional Office] in 1990 denied a claim for service connection for arthritis and the Veteran’s medical records showed a diagnosis of IHD, the Manual required VA to list IHD in the rating decision. Under Nehmer, the RO [Regional Office] decision is treated as having denied a claim for IHD if IHD was coded in the rating decision or it should have been coded in the rating decision. This provision resulted in confusion as to whether medical records alone constitute a claim. They do not constitute a claim by themselves, but if we have such medical records at the time we receive 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. Id. at 17-18 (underlined and italicized emphasis added; bold emphasis in original). Appendix 18 in the Nehmer Training Guide, as referenced above, “provides historical communication regarding what evidence serves as a claim under, and therefore the application of, ‘footnote 1,’ and also serves to show that current instruction is wholly consistent with such history and not new or novel.” Id. at 143. Appendix 18 explains as follows concerning the 1991 Final Stipulation and Order: VA promulgated 38 C.F.R. § 3.816, which codified the procedures for adjudicating claims under the [May 1991] Final Stipulation. On January 21, 2004, class counsel asserted in a letter to the Department of Justice (DOJ) that footnote 1 in paragraph 5 of the Final Stipulation establishes a substantive rule that VA failed to address in section 3.816. Paragraph 5 states, in relevant part, as follows: For any of the [presumptive diseases], as to any denials of claims which were voided as a result of the Court’s May 3, 1969 Order, the effective date for disability compensation or dependency and indemnity compensation... , if the claim is allowed upon readjudication... , will be the date the claim giving rise to the voided decision was filed..., assuming the basis upon which compensation is granted after readjudication is the same basis upon which the original claim was filed,1 or the date the claimant became disabled or death occurred, whichever is later. In the event the basis upon which a claim for compensation benefits is granted after readjudication is different than the basis for the original claim giving rise to the voided decision,2 the effective date... will be the date on which the claim asserting the basis upon which the claim is granted was filed, or the date the claimant became disabled or death occurred, whichever is later. (emphasis added). Footnote 1 provides: “The basis upon which the original claim was filed refers to the disease[s] or condition[s] which Chapter 46 of VA Manual M21-1, paragraph 46.02 required to be coded in the ratings decision contained in the claimant’s claim file, which ratings decision was voided by the Court’s May 3, 1989 Order.” (emphasis added). … The Final Stipulation defined “the basis upon which the original claim was filed” with reference to paragraph 46.02 of the manual, which established the requirement that additional noted disabilities be “coded,” unless a listed exception applied. Among other things, the manual provision excepted from the coding requirement “conditions recorded by history only.” Thus, noted disabilities that have been diagnosed were required to be coded in a rating decision even though the claimant may not have raised any issue concerning those disabilities in the claim being adjudicated. The provision is clear that the term “code” refers to rating codes, not diagnostic codes. Accordingly, a condition that the paragraph 46.02 language “required to be coded,” is one that the provision required to be rated in a decision. Class counsel asserts that the paragraph 46.02 language, which footnote 1 incorporated in the Final Stipulation, established “objective criteria... for determining whether a rating decision denied compensation for a particular disease.” Class counsel further contends that a claim falls within the effective-date provisions of paragraph 5 of the Final Stipulation “if paragraph 46.02 of M21-1 required the covered Agent Orange-related disease to be ‘coded’ in the rating decision on the claim.” In our view, this is a reasonable interpretation of the Final Stipulation because it is consistent with the court’s and the parties’ intent to provide a remedy for the Nehmer class. In other words, in the context of this litigation, it is reasonable to assume that, in 1991, the court and the parties intended to provide a remedy for persons with diagnosed herbicide-related conditions who either received a rating decision denying an express claim for service connection for that condition; received a rating decision that addressed (coded as non-service-connected) an unclaimed herbicide-related condition; or received a rating decision that failed to address a noted condition (failed to code the condition). Each of these types of “decisions” could be viewed as being voided by the court’s May 1989 order. However, section 3.816 currently covers only the first type of decision. Id. at 144-145 (bolded and italicized emphasis added; underlined emphasis in original). Appendix 18 then noted that another reasonable interpretation would not expand the remedy available to other Nehmer class members, but the first interpretation as summarized above was a reasonable, pro-veteran interpretation that was consistent with the purpose of the Final Stipulation. Id. at 146. In short, as noted in the emphasized language, Training Letter 10-04 and its attached Nehmer Training Guide, including Appendix 18, explain that footnote 1 of the Final Stipulation applies to prior VA decisions, generally denials, on claims for service connection. These materials reflect that footnote 1 means that a prior VA decision that denied service connection for an unrelated condition is also deemed to have denied service connection for a covered herbicide disease if a diagnosis was shown in medical records at the time, even if that condition was not claimed. Therefore, the date of claim for the covered herbicide disease should be the date the claim of service connection for the unrelated disease was received by VA. The explanations in these materials, including Appendix 18, are also consistent with the Board’s independent review of the text of paragraph 5 and footnote 1 in the Nehmer 1991 Final Stipulation and Order, when considered with the definition of the cited prior provision of VBA’s adjudication manual. The Order text focuses on prior “denials of claims,” the basis for the original claim, and the disease that was, at the time, required to be coded in a decision on service connection. Therefore, footnote 1 does not apply to any prior increased rating claim, which is the basis of the Veteran’s arguments in this case. Moreover, the Veteran’s 1996 VA treatment records do not qualify as an informal increased rating claim. “[T]he purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran’s disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened.” Massie, 25 Vet. App. at 132. To qualify, the record must suggest that the service-connected disability has worsened since the time it was last evaluated. Id. at 134. The April 1996 and October 1996 VA treatment records stated that the Veteran had been having worsening symptoms of pain in his left shoulder and arm over the past year or several months, and he had not been having significant symptoms prior to that time. See RBA 5888-5889. However, the Veteran was already in receipt of a 60 percent rating for his gunshot wound residuals to the left shoulder, or left brachial plexus nerve damage status-post fusion, effective since September 1967. This is the highest rating for his nerve damage in the minor arm without complete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Code 8513. That initial rating was granted based on symptoms including but not limited to pain and limited function in the left shoulder and arm, which resulted in his medical discharge from service. See May 1968 rating decision. Although the VA treatment records appear to reflect improved symptoms since the initial award of service connection, his complaints in 1996 did not suggest a worsening since the prior evaluation. Massie, 25 Vet. App. at 134. Therefore, there was no pending unadjudicated claim under § 3.157(b)(1). Additionally, there was no claim or denial prior to February 10, 2010, for any disability at a time when there was medical evidence of a diagnosis of IHD. In September 1967, following his separation from service in August 1967, the Veteran submitted a claim for gunshot service connection for wound residuals of the left shoulder, which was granted in a May 1968 rating decision. At that time, there was no evidence of a claim or diagnosis of a heart disability, to include IHD. On February 10, 2010, the Veteran submitted a claim for service connection for diabetes mellitus, type II, due to herbicide agent exposure, which was granted in a May 2010 decision. VA and private medical evidence received in conjunction with this claim confirmed a diagnosis and treatment for IHD in October 2000. On November 17, 2011, the Veteran filed a claim for service connection for a heart disability as due to Agent Orange exposure. A July 2012 rating decision granted service connection for IHD, effective November 17, 2010, one year prior to the date of receipt of his claim for this disability, pursuant to 38 C.F.R. § 3.816. With regard to the other Nehmer stipulations, there is no argument or indication of a prior denial of service connection for a heart disability between 1985 and 1989. There is also no argument or indication of a prior informal or formal claim specifically for service connection for a heart disability between 1989 and the effective date of the liberalizing law on August 31, 2010. Although the Veteran testified during his 2016 Board hearing that he filed a claim in 2010, he stated that this was after IHD was added as a presumptive condition in August 2010. Additionally, there is no argument or indication that the Veteran filed a claim for service connection for a heart disability in October 2000, or within one year of his treatment, diagnosis, and surgery for this disability, all of which occurred at a private facility. The Veteran’s private treatment records that diagnosed coronary artery disease, or IHD, in October 2000 were received in 2011 and 2012. The mere notation of coronary artery disease in these records, or in VA treatment records in January 2001 and subsequently, is not sufficient to raise a claim for service connection. See Brannon, 12 Vet. App. at 35; Lalonde, 12 Vet. App. at 382. However, because medical evidence at the time of the decision granting service connection for diabetes showed a diagnosis of IHD, the February 10, 2010, date of claim for that disability is also considered the date of claim for IHD, applying footnote 1 of the 1991 Nehmer Final Stipulation and Order. The appropriate effective date is the later of this claim and the date entitlement arose. Because entitlement arose in October 2000, the date of diagnosis, the date of claim is later, and February 10, 2010, is the appropriate effective date for service connection for IHD. This effective date was awarded in a November 2017 rating decision. Therefore, the criteria for an earlier effective date are not met, and the appeal is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.