Citation Nr: 21068753 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-39 551 DATE: November 12, 2021 REMANDED Entitlement to an effective date prior to October 23, 2014, for an award of service connection for coronary artery disease (CAD) is remanded. Entitlement to an effective date prior to October 23, 2014, for an award of service connection for peripheral vascular disease (PVD) of the bilateral lower extremities secondary to CAD is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1968 to August 1970. He testified in a May 2019 Board hearing. A transcript is of record. The Judge who conducted that hearing is no longer at the Board. The Veteran was offered an opportunity for an additional hearing and responded that he did not want an additional Board hearing on these matters. In July 2019, the Board of Veterans' Appeals (Board) decided the issues addressed herein. The Veteran appealed. In November2020 the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMFR), vacating the BoardsJuly2019decision and remanded the issues. The Court determined that the Board erred when it failed to consider evidence of the Veteran's diagnosed medical conditions during the filing of his April 1, 1997 claim for benefits and whether it may reasonably be construed as the same covered herbicide disease for which compensation has been awarded under Nehmer v. U.S. Dept. of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 14, 1991). 1. The claims for entitlement to an effective date prior to October 23, 2014, for the awards of service connection for CAD and PVD of the lower extremities are remanded. Remand is necessary in this case because substantial compliance with the Board's April 2021 Remand directives has not been achieved. In that remand, the Board charged the RO with development including the securing of medical opinions addressing the Veteran's various contentions in this case, including when he developed ischemic heart disease, and whether the presence of ischemic heart disease was manifest in the record when he filed his claim for service connection for posttraumatic stress disorder, as well as when evidence of PVC, which condition is service-connected secondary to CAD in this case, was first shown in the record. These questions are critical in this case because the Veteran has averred that an earlier effective date is warranted based on an exception to the generally applicable rules in 38 C.F.R. § 3.114 concerning assignment of effective dates established in Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); and Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). As discussed in the Board's prior remand, if the record reflects that the Veteran, at the time his PTSD claim was adjudicated, had a condition or conditions that should have been "coded" in the rating decision, even if not explicitly claimed, for Nehmer purposes, that condition is to be treated as a denied service connection claim. With respect to the Veteran's CAD, an August 2021 VA examiner indicated only that "[p]er available records the first documented [diagnosis] of coronary artery disease, by angiogram, was in 2015," adding that "[d]iagnosis of [CAD] can only be made by angiogram or cardiac CT for calcium scoring," and that EKG was insufficient to establish a firm diagnosis of CAD. The same examiner opined that it was at least as likely as not that the Veteran's PVD was diagnosed in 1997. The Board notes that PVD has been service-connected as secondary to CAD in this case. On remand, a new VA examiner must consider and furnish a thorough medical opinion addressing the various arguments advanced by the Veteran in this matter with respect to the onset of CAD. The matters are REMANDED for the following action: 1. Forward the medical file to a VA examiner who has not previously participated in this case. The examiner is directed to consider the arguments and positions advanced by the Veteran and his representative, to include whether the record as extant at the time the Veteran's PTSD claim was adjudicated reflected the presence of CAD and/or PVD. All findings and rationale should be thoroughly explained. 2. Review the VA examiner's report to ensure compliance with this remand. 3. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.