Citation Nr: A21016668 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 190329-7945 ,DATE: October 13, 2021 ORDER Entitlement to an effective date prior to February 26, 2018, for service connection for a heart disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for a heart disability is remanded. FINDINGS OF FACT 1. The Veteran was most recently discharged from active duty in July 2008. 2. The Veteran was diagnosed with a heart disability in August 2017. 3. The Veteran filed a notice of intent to file a claim for compensation on February 26, 2018. 4. The Veteran filed a completed claim for service connection of coronary artery disease on October 18, 2018, within one year of his notice of intent to file a claim. 5. Prior to February 26, 2018, the Veteran had not filed a claim for service connection of a heart condition. CONCLUSION OF LAW The criteria for an effective date prior to February 26, 2018 for service connection for heart disability have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army from February 1984 to June 1990 and February 2001 to July 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The AOJ granted service connection for the heart disability, and assigned an effective date of February 26, 2018. In his VA Form 10182, Notice of Disagreement (NOD), the Veteran elected the Direct Review option. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, which is the February 2019 rating decision. 38 C.F.R. § 20.301. Generally, the effective date of service connection based on an original claim will be 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. An exception is that the day following the date of separation from active service or the date entitlement arose controls if the claim is received within one year after separation from active service; otherwise, the general rule applies. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 38 C.F.R. § 3.155(b) provides that if a claimant or other person acting on their behalf submits an intent to file a claim to VA and a complete application form prescribed by the Secretary is received within one year of the receipt of the intent to file a claim, the date of receipt of the intent to file a claim will be considered the date of receipt of claim. The Veteran contends that he is entitled to an earlier effective date for the award of service connection for his heart disability, but does not specify a date or advance a theory as to why he is entitled to an earlier effective date. Medical records show that the Veteran was diagnosed with a heart condition on or about August 2017, giving rise to the entitlement. A notice of intent to file a claim for compensation was received on February 26, 2018. Using VA Form 21-526b, "Veteran's Supplemental Claim for Compensation", the Veteran filed a claim for service connection of his coronary artery disease with pacemaker implant on October 8, 2018. On the form, the Veteran indicated that he was seeking service connection for new disabilities. The record does not document prior claims for an acquired heart condition, and the Veteran does not contend that he had filed such a claim previously. In this case, the record documents that the Veteran filed a notice of intent to file a claim on February 26, 2018. Although the Veteran did not specify the disabilities involved in the communication, he filed a claim for service connection of his heart disability on October 8, 2018. This satisfies the requirement of submitting a complete application form within one year of the receipt of his notice of intent to file a claim, and the date of the Veteran's claim is therefore February 26, 2018. 38 U.S.C. § 3.155(b); Military-Veterans Advocacy v. Sec'y of VA, 7 F.4th 1110 (2021). Since the Veteran's entitlement arose prior to the date he filed his claim, the date of the claim February 26, 2018 is the effective date for his heart disability, as it is the later of the date entitlement arose and the date the claim was filed. 38 C.F.R. § 3.400(b)(2). Although the Veteran submitted his claim for service connection on a supplemental claims form, the claims file does not contain prior decisions regarding service connection for a heart disability, so the provisions of 38 C.F.R. § 3.400(h) regarding effective dates for continuously pursued claims does not apply. Because the notice of intent to file a claim was received more than a year after his most recent separation from service in July 2008, the day after separation from service is not a potential effective date. In sum, the preponderance of the evidence in this case shows that the effective date for service connection of the Veteran's heart disability is February 26, 2018 and no earlier. REASONS FOR REMAND Remand is permitted only to correct a pre-decisional error or for any other error the correction of which raises a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802. VA has a duty to assist Veterans in obtaining evidence to substantiate claims, which includes obtaining relevant records and providing medical examinations or obtaining medical opinions when necessary. 38 C.F.R. § 3.159(c). Here, VA has failed to obtain adequate examinations and opinions sufficient to accurately rate the Veteran's heart disability and failed to assist the Veteran in gathering relevant private treatment records; as such, a remand is required. The AOJ committed a pre-decisional error by not assisting the Veteran in obtaining relevant treatment records. VA treatment records prior to February 2019 indicate that the Veteran's heart conditions were being treated by Dr. Park and Dr. Alam of Baylor Cardiology. While there is some indication that Dr. Park is associated with the St. Luke's Health system, as her name appears in the private hospital records associated with the file, the extent or nature of the association between Baylor Cardiology and St. Luke's is not clear from the evidence of record. Moreover, Dr. Alam's treatment records are absent from the claims file. These private treatment records were not associated with the claims file, nor is there documentation that VA has made efforts to obtain those relevant records or informed the Veteran that VA can assist him in obtaining those records. Consequently, a remand for additional development in accordance with 38 C.F.R. § 3.159(c) is required. In addition, VA did not provide an examination adequate for a fully informed rating decision. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran claimed service connection for coronary artery disease, and in November 2018 attended a VA examination. The VA examiner, a radiologist, diagnosed the Veteran with congestive heart failure, an implanted cardiac pacemaker and right bundle branch block arrythmia. Based on interview METs testing, the Veteran was functioning at one to three METs. The examiner concluded that the Veteran's estimated METs level based solely on his cardiac conditions was three to five METs, and attributed this difference to the Veteran's service-connected stroke and diabetes. The examiner further opined the Veteran's congestive heart failure, implanted cardiac pacemaker and arrhythmia were service-connected, secondary to his diabetes. Additional development was undertaken by the AOJ that elicited conflicting information about which, of the Veteran's heart conditions were proximately caused by his service-connected diabetes and the extent to which those service-connected heart conditions caused functional limitations. None of the examiners were able to review the Veteran's complete cardiology treatment records, and the conflicts were unresolved. Ultimately, the Veteran was granted service connection for congestive heart failure (which can be a manifestation of multiple cardiac conditions listed in 38 C.F.R. § 4.71a) and given a disability rating of 10 percent under Diagnostic Code 7005 (Ischemic Heart Disease). The examination and subsequent addendum opinions do not permit the Board to make a fully informed decision as to the extent of the functional limitations caused by the Veteran's service-connected heart conditions. This is an error in the duty to assist, and remand is required. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The matters are REMANDED for the following action: 1. Contact the Veteran and request properly executed releases for any private care providers who have treated the Veteran's heart condition(s) since August 2017. Records from Dr. Park and Dr. Alam of Baylor Cardiology should be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself 2. Then, schedule the Veteran for a VA heart examination with a qualified examiner -- either a cardiologist or a clinician with demonstrated expertise in cardiology. All necessary testing should be conducted. If stress testing cannot be performed, such should be clearly stated and explained, and interview METS assessment performed. The cardiac clinician must identify and assess the current severity of all heart disabilities since February 2018. Coronary artery disease, congestive heart failure, tachycardia, premature ventricular contraction and left ventricular hypertrophy, as well as any other cardiac diagnoses must be specifically discussed. The examiner must clearly identify the heart condition(s) related to service-connected diabetes, stroke, and hypertension, and must opine as to the remaining functional capacity (in METS) of the Veteran as a result of such service-connected heart conditions. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.