Citation Nr: 21069903 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 16-46 781 DATE: November 22, 2021 ORDER Entitlement to an effective date of November 07, 2002, and no earlier, for service connection for coronary artery disease (CAD) with valvular heart disease is granted. FINDINGS OF FACT 1. The competent and credible evidence of record demonstrates the Veteran's CAD was present in 1971 both during and upon separation from service. 2. A December 1971 rating decision denying service connection for a heart disability became final; the Veteran did not appeal that decision nor was new and material evidence submitted within a year of that decision. 3. The Veteran's date of claim to reopen service connection for CAD pursuant to Nehmer is November 07, 2002. CONCLUSION OF LAW The criteria for entitlement to an effective date of November 07, 2002, and no earlier, for service connection for CAD with valvular heart disease have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1969 to January 1971, and his DD 214 shows that he served in the Republic of Vietnam from April 1970 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. An April 2015 rating decision granted service connection for CAD with valvular heart disease, effective July 17, 2014. In December 2017, the Board issued a decision that denied the Veteran's claim for an effective date prior to July 17, 2014 for service connection for CAD with valvular heart disease. The Veteran appealed the Board's December 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, pursuant to a June 2018 Joint Motion for Remand, the Court vacated the Board's December 2017 decision, and remanded the matters to the Board for further action. In January 2019, the Board granted an earlier effective date of December 23, 2009, but no earlier, for service connection for CAD with valvular heart disease. The Veteran appealed the Board's January 2019 decision to the Court again. In October 2019, pursuant to Joint Motion for Partial Remand, the Court vacated the Board's January 2019 decision, and remanded the matters to the Board for further action. Entitlement to an effective date of November 07, 2002, and no earlier, for service connection for CAD with valvular heart disease is granted. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110 (a). Where compensation is awarded pursuant to a liberalizing law, the effective date shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the act or regulation. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). If a claim is reviewed at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the liberalized law provided the claimant met all eligibility criteria on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. 38 C.F.R. § 3.114 (a). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. That is, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of the United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." See 38 C.F.R. § 3.816. The Veteran served in the country of Vietnam during the Vietnam War era and, therefore, is a "Vietnam veteran" as defined in the regulation. See 38 C.F.R. § 3.307 (a)(6). According to 38 C.F.R. § 3.816 (b)(2) a "covered herbicide disease" includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne as provided in 38 C.F.R. § 3.309 (e). Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law; or if the class member's claim was received within one year from the date of the class member's separation from service. See 38 C.F.R. § 3.816 (c)(1)-(3). If the requirements of 38 C.F.R. § 3.816 (c)(1)-(3) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114, 3.400. See 38 C.F.R. § 3.816 (c)(4). The Veteran's initial claim for VA compensation, for sinusitis, was received on March 3, 1971, and made no mention of heart disease. As observed in footnote one of the Veteran's former representative's November 8, 2017 Informal Hearing Presentation, there was no written claim for service connection for heart disease (a copy of the Veteran's original heart condition claim could not be located in the record), but in light of later medical information the RO construed the March 3, 1971 claim to include service connection for a heart condition. In December 1971, the RO issued a rating decision which denied service connection for a heart condition. The Veteran did not appeal that decision. Additional service records and relevant VA records were not received within one year of the December 1971 rating decision. In VA Form 21-4138, Statement in Support of Claim, received on November 7, 2002, the Veteran claimed service connection for headaches as a residual of in-service head trauma. Pursuant to a mandate of a decision by a federal court, the RO reviewed the Veteran's claim. Thereafter, a September 2011 rating decision denied service connection for ischemic heart disease (IHD). That rating decision was conducted pursuant to a federal Court order and, therein it was stated the Veteran's VA Form 21-4138, Statement in Support of Claim, received on November 7, 2002, in which he claimed service connection for head trauma and headaches, was accompanied by VA outpatient treatment records from 2001 to 2002 which indicated a diagnosis of hypertensive heart disease. Thus, the RO accepted the November 7, 2002, VA Form 21-4138, as the date of claim for IHD for the purpose of the Nehmer review. The Veteran was notified of the September 2011 denial of service connection for IHD by letter dated September 21, 2011. In VA Form 21-4138, Statement in Support of Claim, received on November 15, 2011, signed by the Veteran's wife (who had been appointed as his guardian following his having been determined to be incompetent) it was stated that "I disagree with all issues on your letter dated "9-21-11" and she requested a review of the claim by a Decision Review Officer. A May 19, 2014 statement of the case (SOC) was issued addressing entitlement to retroactive benefits under Nehmer for the issue of service connection for IHD. Thereafter, on July 17, 2014, and within 60 days of the SOC, correspondence was received in the form of VA Form 21-4138, Statement in Support of Claim, in which it was stated that the correspondence was in reference to the May 19, 2014 "letter" [in this case the SOC as there was no other correspondence of that date]. It was stated that a doctor had reported that the Veteran had IHD. Attached was a report, dated July 14, 2014, from Dr. C.Q. in which it was reported that the Veteran's diagnoses included hypertensive cardiovascular disease and CAD. In an August 12, 2014 letter, the RO stated that it was working on the Veteran's claim and proceeded to provide the Veteran with notification of the respective duties of VA in providing notice and assistance under the Veterans Claims Assistance Act. Thus, the RO accepted the correspondence of July 17, 2014 as an application to reopen a claim for service connection for IHD. This also means that, at least implicitly, the RO did not accept the July 17, 2014 correspondence as a substantive appeal which would have perfected an appeal of the September 2011 rating decision denying service connection for IHD. In December 2017, the Board determined that an appeal was perfected following the September 2011 rating decision which denied service connection for IHD and that an appeal was initiated from that rating decision in a timely manner. Furthermore, it was determined that the correspondence received on July 14, 2014 was within the 60 days following the May 19, 2014 SOC, albeit more than one year of the September 21, 2011 notification of denial of that claim. Under 38 C.F.R. § 20.302 (b), an appeal is perfected in a timely manner if a substantive appeal is filed within one year of notification of the action appealed or within 60 days of the issuance of an SOC. As such, the correspondence of July 17, 2014 constituted a substantive appeal. In this regard, 38 C.F.R. § 20.202 states that a substantive appeal consists of either a completed VA Form 9, Appeal to the Board of Veterans' Appeals, or "correspondence containing the necessary information." Turning to the medical evidence of record, the Board notes that an April 2011 VA examination found no evidence of IHD but noted that cardiac hypertrophy or dilation was evident upon a December 23, 2009 echocardiogram. An April 2015 VA examination found that the Veteran had CAD and valvular heart disease. It was reported that he had a history of shortness of breath and chest discomfort for more than 20 years. He indicated that he continued to have shortness of breath and chest pain. His valvular condition was moderate aortic stenosis. A September 2014 echocardiogram had revealed evidence of cardiac hypertrophy, cardiac dilatation, and left ventricular hypertrophy. An October 2014 angiogram had confirmed non-obstructive CAD. An aortic valve replacement was performed in November 2014. He was being followed up by cardiology service and was still in evaluation. An echocardiogram was scheduled for May 11, 2015. His CAD qualified within the generally accepted medical definition of IHD. He had not had an MI. The April 2015 rating decision granted service connection for CAD with valvular heart disease and assigned an initial 60 percent disability rating, all effective the date of receipt of claim of July 17, 2014. At that time, the assigned effective date for the grant of service connection for the Veteran's CAD was July 17, 2014, the date VA received the Veteran's correspondence in reference to the May 2014 SOC with accompanying private treatment report dated April 2011 reflecting the Veteran's CAD. The Veteran, through his representative, argues in a November 2018 written submission, that the record does not contain a notice letter of the December 1971 rating decision mailed to the Veteran. The representative, therefore, states that absent evidence of proper notice, the December 1971 rating decision cannot be final, and the claim remained pending on May 3, 1989. The representative further argues that as such, the requirements of 38 C.F.R. § 3.816 (c)(2), (3) are met, and that service connection should be granted effective from "the day following the date of [] separation from active service," which is January 25, 1971 in this case. VA is entitled to a presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran. Kyhn v. Shinseki, 24 Vet. App. 228 (2011); Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 2013). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, no receipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271 (1994); Schoolman v. West, 12 Vet. App. 307 (1999). Moreover, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The presumption is rebuttable. An example of this would be when there is clear evidence of non-delivery, as confirmed by the United States Postal Service returning the mail as undeliverable, and if there is another address on file at which the appellant perhaps could be located. The Veteran and representative have provided no evidence beyond their assertions that the Veteran did not receive notification of the December 1971 rating decision. Therefore, there is no clear evidence of non-delivery, and the presumption of administrative regularity has not been rebutted. The Board thus concludes that the Veteran was notified of the December 1971 decision and of his appellate rights but did not initiate an appeal of those issues. However, even if the Veteran never received notification of the December 1971 rating decision, the Board finds that no claim of service connection for IHD was received by VA within one year of the Veteran's separation from service. As discussed above, the Veteran's March 1971 claim did not mention any heart condition, and the evidence of record did not show any IHD at that time. A September 23, 1971 VA general medical examination found that the Veteran's cardiovascular system was normal and without evidence of heart disease. He had no complaints referable to his cardiovascular system. No clinical records prior to July 2014 indicate any intent on the part of the Veteran to apply for service connection for valvular heart disease, coronary artery disease or any other form of recognized IHD. Where a claimant has not previously been granted service connection, VA's receipt of medical records cannot be construed as an informal claim. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. Brannon v. West, 12 Vet. App. 32, 34 - 35 1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, there was no such claim prior to July 2014. Even if initial entitlement to presumptive service connection under the Nehmer provisions is satisfied under the criteria set forth in 38 C.F.R. § 3.309 (e), which it does and will be addressed below, the Veteran's March 1971 claim for compensation was not an intent to file a claim for a heart disability but rather a sinus condition and was incidentally adjudicated as a claim for service connection for a heart disease based on the September 1971 VA examination findings. Furthermore, the Veteran did not initiate an appeal of the December 1971 rating nor did the evidence show he intended to pursue the claim immediately thereafter. Therefore, an earlier effective date of January 25, 1971, the day following separation from service, is not warranted. In October 2018, the Veteran submitted a private medical opinion from Dr. S.D.P. stating that the Veteran's aortic valve disease and CAD more likely than not manifested within one year of the Veteran's departure from military service, based on his medical history of chest pain and syncope-like episode occurred in service, which was interpreted as MI as well as recurrent and long history of excise related angina, fatigue, and dyspnea. In January 2019, the Board granted an earlier effective date of December 23, 2009 for CAD with valvular heart disease as this was the date the evidence first showed the Veteran's CAD manifested to a compensable degree. In making this finding, the Board relied on an August 2011 VA examination report that found evidence of cardiac hypertrophy or dilation on an echocardiogram performed on December 23, 2009. However, in the December 2019 joint motion for partial remand, the Court found the Board erred in failing to address a February 2010 VA cardiology outpatient follow up note that indicated a July 2009 chest x-ray evidenced cardiomegaly. As such, the issue that must be addressed is whether the evidence of record for the period prior to December 23, 2009 still establishes entitlement an earlier effective date based on an earlier diagnosis for CAD. In March 2020, the Veteran and his representative continued to argue that the December 1971 rating decision remained pending until service connection for CAD was ultimately granted because the record does not contain a notice letter mailed to the Veteran and the Veteran's CAD manifested to a compensable degree within one year of separation, as evidenced by symptoms of shortness of breath/dyspnea, warranting an effective date of January 25, 1971, one day following separation from service. As discussed above, this argument fails. A July 2020 VA examination demonstrated a diagnosis for acute, subacute, or old myocardial infarction, CAD, hear block, valvular heart disease, implanted cardiac pacemaker, and atrial fibrillation. The examiner concluded that there was no objective or clinical evidence supporting a diagnosis for CAD prior to 2014 and that a natural progression occurred since initial diagnosis. In addition, the examiner indicated it was not possible to approximate a timeframe for debilitating effects of the Veteran's heart disease using METs limitation or value upon clinical notes but that the 2009 echocardiogram rendered an accurate finding regarding cardiovascular manifestation, and that aortic stenosis first manifested to a compensable degree in 2014 due to symptomatic findings requiring surgery; prior to 2014 clinical notes indicated the Veteran was asymptomatic. The examiner then clarified that valvular heart disease is not a form of IHD but rather a condition aggravated by CAD in 2014. In August 2021, a private medical opinion, dated July 2021, from Dr. S.D.P., was obtained and noted a thorough review of the medical record and application of accepted medical principals and literature. She ultimately concluded that the Veteran's CAD manifested during active duty, to include symptoms of acute chest pain, fatigue, dyspnea, and syncope, and that although diagnosed as myocardial infarction at the time, CAD was concomitantly present with aortic stenosis during service as he presented typical manifestations of CAD in the form of acute IHD thereby causing myocardial infarction and symptoms of aortic stenosis. She also opined that aortic stenosis was present during service and contributed to worsening of CAD because aortic stenosis is not only a disease of the valve but also of the myocardium as evidenced by supporting medical literature. Dr. S.D.P disagreed with the findings by the July 2020 VA examiner who erroneously placed onset of the Veteran's aortic stenosis and CAD in 2014. She indicated that a private cardiologic evaluation in 2009 showed a diagnosis for CAD and ineffectually concluded that the Veteran was diagnosed with valvular heart disease in 2009 and that aortic stenosis manifested to a compensable degree in 2014. She further noted that however, aortic stenosis had its onset since service but examiners failed to record information estimating current METs criteria to no fault of the Veteran. Prior to 2014, he experienced symptoms of fatigue and recurrent chest pain consistent with angina pectoris at light exertion, which led him to consults with a private cardiologist. Dr. S.D.P. elaborated on the significant correlation between aortic stenosis and CAD; and the Veteran's history of chest pain, dyspnea, and fatigue for more than 20 years before CAD; and aortic stenosis was documented in medical records in 2009. She further explained that while medical records did not demonstrate myocardial infarction since 1971, the documented myocardial infarction in service was more likely than not due to sudden coronary artery blockage or slow blood flow; this is considered CAD because the presence of myocardial infarction exists alongside coronary disease. Moreover, Dr. S.D.P. noted that records failed to demonstrate any coronary/myocardial ischemia assessment studies and a diagnosis likely made by EKG; therefore, CAD could not be excluded at any period prior to 2009, including service or during the first year following separation, based on the Veteran's reports and medical records clinically consistent with myocardial infarction. As such, she ultimately concluded that CAD manifested to a compensable degree in 1971 by evidence of workload greater than 5-7 METs, dyspnea, fatigue, angina, dizziness, and syncope at mild to moderate physical exertion based on retrospective clinical reports. (Continued on the next page) The Board assigns the July 2021 private opinion significant probative value as it is based upon a thorough review of the medical records, the Veteran's history and lay statements, and accepted medical practices and literature in support of the conclusion that the Veteran's CAD more likely than not manifested during service and to compensable degree within one year of separation as evidenced by workload greater than 5-7 METs, as well as dyspnea, fatigue, angina, dizziness, and syncope. The Board has considered the July 2020 VA examiner's opinion; however, the examiner's conclusion is premised on the lack of medical evidence definitively showing a diagnosis for CAD or aortic stenosis even though appropriate clinical studies were not performed to assess the presence of CAD or ischemia prior to 2014. As noted above, the Veteran falls within the provisions of 38 C.F.R. § 3.816 (c)(2) which states that the effective date is the later of the date of claim received (November 2002) or date entitlement arose. As the competent and credible medical evidence establishes that the Veteran's CAD arose during service in 1971, the date entitlement arose predates the date of claim and as such the appropriate effective date for the grant of service connection for CAD is November 07, 2002. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, 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.