Citation Nr: 21070184 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 20-27 268 DATE: November 23, 2021 ORDER Entitlement to an effective date prior to May 30, 2016 for the grant of service connection for coronary artery disease (CAD) post myocardial infarction (MI) is denied. Entitlement to an effective date prior to May 30, 2017 for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. REMANDED Entitlement to an effective date prior to February 11, 2019 for the grant of service connection for prostate cancer is remanded. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicide agents, is remanded. Entitlement to an initial increased disability rating in excess of 10 percent from May 30, 2016 to March 25, 2020, in excess of 60 percent from March 26, 2020 to March 26, 2021, and in excess of 10 percent from March 27, 2021 for CAD post MI is remanded. Entitlement a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for heart condition on May 30, 2017. The record does not contain evidence of the Veteran having filed this claim prior to May 30, 2017. 2. The evidence of record demonstrates the claim for service connection for CAD warrants a one year earlier effective date of May 30, 2016 as there was evidence of CAD since June 2007. 3. The Veteran filed an informal claim for entitlement to service connection for peripheral neuropathy on October 5, 2013. In a January 2014 letter, the RO requested that the Veteran submit a formal application for benefits (VA Form 21-526) within one year; the record does not contain evidence of the Veteran having filed a formal claim within one year of that date. 4. The Veteran filed a formal claim for service connection for peripheral neuropathy on May 30, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to May 30, 2016 for the grant of service connection for CAD post MI have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.309, 3.400, 3.816. 2. The criteria for entitlement to an effective date prior to May 30, 2017 for the grant of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.309, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1966 to May 1968, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As a procedural matter, the Board notes that the December 2017 rating decision denied service connection for prostate condition, peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right upper extremity, and peripheral neuropathy of the left upper extremity; and granted service connection for diabetes mellitus (DMII) evaluated as 20 percent disabling from May 30, 2017, CAD evaluated as 10 percent disabling from May 30, 2017, and peripheral neuropathy, right lower extremity, evaluated as 10 percent disabling from May 30, 2017. In his January 2019 notice of disagreement (NOD), the Veteran disagreed with the evaluation and effective dates for CAD and peripheral neuropathy of the right lower extremity; the evaluation of DMII; and service connection for prostate condition, Parkinson's disease, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the left lower extremity. An April 2020 rating decision then granted service connection for prostate cancer, peripheral neuropathy of the bilateral upper extremities, and peripheral neuropathy of the left lower extremity. In addition, the rating decision granted an earlier effective date for CAD with an evaluation of 10 percent from May 30, 2016 and 60 percent from March 26, 2020. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). An April 2020 statement of the case (SOC) was issued and denied an earlier effective date for DMII, service connection for Parkinson's disease and prostate cancer, and earlier effective dates and increased evaluations for CAD and peripheral neuropathy of the right lower extremity. In his June 2020 substantive appeal (Form 9), the Veteran disagreed with the current issues on appeal, as indicated above, as well as the effective dates for the grant of service connection for peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the left lower extremity, and prostate cancer. In addition, he disagreed with a proposal to reduce the evaluation of prostate cancer. These issues are further discussed in the Remand section below. The Board notes that while the Veteran purported to disagree with an earlier proposed reduction of prostate cancer in the June 2020 statement, this statement was submitted prior to the issuance of the August 2020 rating decision effectuating the proposed reduction. Therefore, the June 2020 statement does not constitute a valid notice of disagreement of the August 2020 rating decision, and the propriety of the reduction is not on appeal. In a June 2021 rating decision, the Veteran's CAD was decreased to 10 percent from March 27, 2021. The Board also notes that medical records submitted by the Veteran and obtained by the VA after the most recent April 2020 SOC were associated with the claims file. However, those records are not relevant to the earlier effective date claims on appeal but are relevant to the issue of increased evaluations for CAD. As such, the Board will proceed with adjudication of the earlier effective date claims and remand the issue of increased evaluations for CAD as discussed below. Earlier Effective Dates The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). As to claims filed before March 24, 2015, the term "claim" or "application" means 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a clamant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the clamant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's formal claim was received by VA after that date, the current regulations apply. The effective date for an increase will typically be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). For earlier effective date increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). 1. Entitlement to an effective date prior to May 30, 2016 for the grant of service connection for CAD post MI is denied. The Veteran contends that he is entitled to an earlier effective date prior to May 30, 2016 for the grant of service connection for CAD post MI. For the following reasons, the Board finds that the criteria for an earlier effective date have not been met. The Veteran filed an original formal claim for service connection for a heart condition on May 30, 2017. He does not indicate, and the record does not show, that he filed a claim for a heart condition prior to that date. Based on the date of claim, the Board finds that an earlier effective date is not warranted. As the claim was submitted more than a year after the Veteran separated from active service, the earliest possible effective date of service connection is generally the date of claim. See 38 C.F.R. § 3.400. However, because the claim was granted pursuant to a liberalizing law, as explained below, the RO established an effective date of May 30, 2016, which is one year prior to the date of claim. See 38 C.F.R. § 3.114. The Board finds that the effective date provisions with regard to liberalizing laws under 38 C.F.R. § 3.114, and the special effective date provisions applicable to Nehmer class members (discussed further below) do not afford a basis for an effective date earlier than May 30, 2016, for the reasons that follow. Effective August 31, 2010, ischemic heart disease (among other diseases) was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309 (e). See 75 Fed. Reg. 53, 202 (August 31, 2010). That addition constitutes a liberalizing law. Where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA or by the Secretary's direction, 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. 38 C.F.R. § 3.114. If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. Id. If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing VA law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. Id. If a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing VA law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. Id. In order for a claimant to be eligible for a retroactive payment under section 3.114, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id. The retroactive provisions of section 3.114 apply both to original and reopened claims, as well as to claims for increase. Id. Here, service connection for the Veteran's CAD post MI was awarded effective May 30, 2016, one year prior to the date of claim, pursuant to 38 C.F.R. § 3.114. A July 2008 VA treatment record demonstrates a diagnosis for old MI in September 2007. See June 2017 CAPRI. As the Veteran did not submit a formal or informal claim within a year of August 31, 2010, the effective date of the addition of ischemic heart disease (CAD) to the list of diseases presumed to be caused by herbicide exposure, the earliest effective date is one year prior to the date of claim. Thus, an effective date earlier than May 26, 2016 cannot be assigned under section 3.114. The Board has also considered the applicability of the Nehmer provisions. Under 38 C.F.R. § 3.816, and as required by the U.S. District Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991), Nehmer class members may benefit from special effective date rules. To qualify as a Nehmer class member, the claimant must be a Vietnam Veteran with a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1). If a Nehmer class member entitled to retroactive benefits dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity in existence at the time of payment, with the class member's surviving spouse being first in order of priority. 38 C.F.R. § 3.816 (f). A "covered herbicide disease" means a disease for which VA 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). Ischemic heart disease (CAD) qualifies as a "covered herbicide disease." 75 Fed. Reg. 53, 202 (August 31, 2010) (providing, in pertinent part, that the Nehmer rules apply to the presumptive diseases newly added to § 3.309(e), including CAD). The provisions of § 3.816 provide, in pertinent part, that when a compensation claim for a covered herbicide disease is denied in a decision issued between September 25, 1985 and May 3, 1989, or is pending before VA on May 3, 1989, or 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, the effective date of the award of service connection is the later of the date the claim was received by VA (which, in the case of a decision issued between September 25, 1985 and May 3, 1989, must be the claim on which the prior denial was based) or the date the disability arose. § 3.816(c). If such a claim is submitted within one year of service separation, then the effective date of the award is the day following the date of separation from service. § 3.816(c)(3). For the purpose of determining entitlement to retroactive benefits for the grant of a covered herbicide disease under 38 C.F.R. § 3.816, a claim will be considered a claim for compensation for a covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disease. §3.816(c)(2)(i). However, in the alternative, such a claim will be established for the purposes of § 3.816 if 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, and VA denied compensation in that decision for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. § 3.816(c)(2)(ii). In this case, the Veteran did not submit any statements or evidence that may be construed as a claim for service connection for a heart condition until May 30, 2017. Moreover, there is no rating decision dated prior that may be construed as denying service connection for a heart condition. Accordingly, the Nehmer effective date rules do not afford a basis for an earlier effective date in this case. In sum, the effective date of May 30, 2016 for the award of service connection for CAD is proper. See 38 C.F.R. §§ 3.114, 3.400. Therefore, the claim for entitlement to an earlier effective date prior to May 30, 2016 for CAD is denied and the benefit of the doubt rule is not up for application. 2. Entitlement to an effective date prior to May 30, 2017 for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. The Veteran contends that he is entitled to an earlier effective date prior to May 30, 2017 for the grant of service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus. In reviewing the evidence, the Board acknowledges that the Veteran submitted an informal claim for service connection for peripheral neuropathy on December 5, 2013, for entitlement to service connection for peripheral neuropathy, diabetes mellitus II, and Parkinson's disease. See December 5, 2013 Third Party Correspondence (docketed as October 5, 2013). A January 2014 correspondence from the RO acknowledged receipt of the informal claim and sent the Veteran the necessary paperwork to file his formal claim for service connection for the above-mentioned disabilities. The RO specifically stated that a reply was needed within one year. However, the formal claim was not filed until May 30, 2017. Because the Veteran did not return the formal application form to establish his original claim, within one year of October 2013, the earliest possible effective date for his disability benefits was the date of his properly filed claim of May 30, 2017. The Veteran's medical record reflects a diagnosis date of August 9, 2017 for peripheral neuropathy of the right lower extremity based on findings in the August 2017 VA examination. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that May 30, 2017 is the correct date for the grant of service connection for peripheral neuropathy of the right lower extremity. While the Veteran has alleged that he is entitled to an earlier effective date for his award of this benefit, there is no basis under the governing legal criteria to establish that he is legally entitled to an earlier effective date. As such, the evidence of record does not reflect that the Veteran submitted a formal claim for service connection for peripheral neuropathy of the right lower extremity between October 5, 2013 and May 30, 2017. As noted above, the effective date of an award of disability compensation based on an original claim 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. As such, the Board must conclude that an effective date earlier than May 30, 2017, the date of the Veteran's original claim for service connection, is not warranted. Although the Veteran believes he is entitled to an earlier effective date prior to May 30, 2017 for the grant of service connection for peripheral neuropathy of the right lower extremity, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). To the extent that the Veteran has an earlier diagnosis for his peripheral neuropathy, as previously noted, an effective date is assigned based on the date of claim or the date entitlement arose, whichever is later. Thus, the proper effective date is May 30, 2017, the date of claim. Accordingly, an earlier effective date is not warranted for the grant of service connection for peripheral neuropathy of the right lower extremity and the claim is denied. REASONS FOR REMAND 1. Entitlement to an effective date prior to February 11, 2019 for the grant of service connection for prostate cancer is remanded. 2. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the right upper extremity is remanded. 3. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the left upper extremity is remanded. 4. Entitlement to an effective date prior to March 26, 2020 for the grant of service connection for peripheral neuropathy of the left lower extremity is remanded. In an April 2020 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the left lower extremity, and prostate cancer. In his June 2020 substantive appeal (Form 9), the Veteran disagreed with the effective dates for the grant of service connection for peripheral neuropathy of the bilateral upper extremities, peripheral neuropathy of the left lower extremity, and prostate cancer. In addition, he disagreed with a proposal to reduce the evaluation of prostate cancer. To date, a statement of the case (SOC) has not been issued regarding the Veteran's claims. See Manlincon v. West, 12 Vet. App. 238 (1999). 5. Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is remanded. The Veteran contends that he has tremors that are related to his herbicide exposure. A September 2017 VA examination demonstrated a diagnosis for Parkinson's disease and tremors in the bilateral upper extremities and right lower extremity. The examiner remarked difficulties with tasks requiring prolonged walking, standing, and climbing stairs. VA treatment records show extensive treatments for tremors but do not evidence a diagnosis for Parkinson's disease. In his June 2020 substantive appeal, the Veteran reports that he was mistaken about his diagnosis and that the tremors in his hands were not related to Parkinson's disease but instead deemed "essential tremors." As such, the Board finds that another VA examination is warranted to better determine the nature and etiology of the claimed condition, particularly with regard to a diagnosis for Parkinson's disease. 6. Entitlement to an initial increased disability rating in excess of 10 percent from May 30, 2016, in excess of 60 percent from March 26, 2020, and in excess of 10 percent from March 27, 2021 for CAD post MI is remanded. The Veteran contends that his CAD is more severe than contemplated by the assigned evaluations. The Board finds that more development is necessary prior to final adjudication of the claim due to the submission of additional evidence that was not considered by the April 2020 SOC. VAMC Hampton records dated from 2019 to 2020 were associated with he claims file, in particular with respect to vascular consults for carotid stenosis. These VA treatment records include pertinent findings related to the Veteran's increased evaluation claim for CAD. However, the April 2020 SOC indicates review of VAMC Hampton records only from 2010 to 2013. Similarly, VAMC Hampton records up until June 2021 evidencing vascular consults were associated with the claims file following the most recent June 2021 rating decision that decreased the CAD evaluation. Those recent VA records were also not considered in the June 2021 rating decision. Because these records are pertinent to the issue on appeal and the Veteran has not waived review of the evidence, this evidence must be reviewed by the AOJ and an SSOC furnished if the issue on appeal remains denied. 38 C.F.R. §§ 19.31 & 19.37(a). 7. Entitlement to TDIU is remanded. The matter of entitlement to a TDIU rating is for consideration throughout the appeal period. Although the Veteran filed VA Form 21-8940 seeking a TDIU rating in March 2021, he claimed that symptoms associated with his service-connected CAD prevented him from securing any substantially gainful occupation. Notwithstanding his formal TDIU claim, the matter of the Veteran's entitlement to a TDIU may be considered a component of an increased rating claim when such is expressly raised by the Veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, while the Veteran formally claimed TDIU by means of his March 2021 application, the evidence received in conjunction with his claim for an increased rating for CAD raises the issue of entitlement to TDIU, thereby triggering the application of Rice. As noted above, the issue of entitlement to an increased disability rating for CAD is being remanded for further consideration with the RO. The Board finds that the increased disability rating claim may affect the Veteran's claim for TDIU, and the claims are therefore inextricably intertwined. As such, a decision on the claim for a TDIU would be premature, and a remand is required pending resolution of the intertwined claim. The matters are REMANDED for the following actions: 1. Issue an SOC for the issues of entitlement to an earlier effective date for prostate cancer, peripheral neuropathy of bilateral upper extremities, and peripheral neuropathy of the left lower extremity. 2. Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of the Veteran's claimed Parkinson's disease and/or tremors. The examiner must be provided access to the electronic claims file and he or she must indicate review of the file in the examination report. The examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Parkinson's disease and/or tremors are related to service, to include herbicide exposure therein. The examiner must reconcile any discrepancies in the September 2013 VA examination, particularly in regard to a diagnosis for Parkinson's disease. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be helpful to the Board. (Continued on the next page) 3. Readjudicate the claims on appeal. If the benefits are not granted to the Veteran's satisfaction, an SSOC should be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, this case should be returned to the Board in accordance with current appellate procedures. 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.