Citation Nr: 21073464 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-08 855A DATE: December 8, 2021 REMANDED Entitlement to an effective date prior to March 30, 2018 for the award of service connection for coronary artery disease (CAD), status post coronary artery bypass graft, including valvular disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1967 to September 1970, to include service in Vietnam. His decorations included the Vietnam Service Medal and the Vietnam Campaign Medal. Unfortunately, he died in October 2019. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the appellant testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Entitlement to an effective date prior to March 30, 2018 for the award of service connection for CAD, status post coronary artery bypass graft, including valvular disease, is remanded. During his lifetime, the Veteran contended that an effective date prior to March 30, 2018 was warranted for the award of service connection for CAD. Specifically, in his August 2018 NOD he stated that he had his first heart attack in 2014 and implied that the effective date of the award of service connection for CAD should reach back to that date. At the May 2021 hearing, the appellant testified that the Veteran had been diagnosed with CAD as early as 2010 and contended that the effective date of the award should be the date that the Veteran was first diagnosed with CAD. The appellant's representative specified that the Veteran underwent open heart surgery in December 2014, but that CAD was actually diagnosed by VA in 2010, at which time the Veteran also had an aortic aneurysm. The appellant testified that the Veteran underwent surgery for the aortic aneurysm at Irvine Hospital. Generally, the effective date of an award of service connection, including a claim reopened after a final disallowance, is 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. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, pursuant to orders of a 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, including ischemic heart disease, which includes CAD. 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. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. Retroactive effective dates are also allowed, to a certain extent, in cases where an award or increase in compensation is granted pursuant to liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all of the 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. These provisions apply to original and reopened claims, as well as to claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of an award of service connection will be the effective date of the liberalizing law or administrative issue if the claim is received within one year after such date. If a claim is received more than one year after the effective date of the liberalizing law or VA administrative issue, benefits may be authorized for a period of one year prior to the date of receipt of the claim. 38 C.F.R. § 3.114(a)(3). The effective date of the liberalizing law that added ischemic heart disease, including CAD, as a disease presumptively due to in-service exposure to herbicides is August 31, 2010. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). In the present case, the Veteran first submitted an Intent to File form on March 30, 2018, which serves as the date of his claim. Thereafter, on April 26, 2018, he submitted a formal claim for service connection for CAD. In the August 2018 rating decision on appeal, the RO granted service connection for CAD as presumptively due to exposure to herbicide agents during his service in Vietnam. It assigned an effective date of March 30, 2018 for the award of service connection the date the Veteran submitted an Intent to File form. The Veteran did not assert, nor has the appellant asserted, that he submitted a formal claim of entitlement to service connection for ischemic heart disease prior to the one received by VA on March 30, 2018. Indeed, the claims file demonstrates that the first time the Veteran submitted a claim of any kind was when he submitted the Intent to File form on March 30, 2018. As noted, the Veteran's CAD is presumed to be service-connected based on exposure to herbicide agents during service in Vietnam. As such, he is a Nehmer class member. However, he was not denied service connection for ischemic heart disease between September 25, 1985, and May 3, 1989. Moreover, he did not submit a claim for service connection for such condition between May 3, 1989, and August 31, 2010, the date on which the liberalizing law that added ischemic heart disease as a disease presumptively due to in-service exposure to herbicides became effective. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010). As such, an earlier effective date for ischemic heart disease, including CAD, pursuant to Nehmer and 38 C.F.R. § 3.816 is not available, and the effective date must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). The addition of ischemic heart disease as a disease recognized as presumptively due to exposure of herbicide agents, effective August 31, 2010, was liberalizing. However, as noted above, in order to be eligible for a retroactive award under the provisions of 38 C.F.R. § 3.114(a), the evidence must show that all eligibility criteria for the liberalized benefit were met on the effective date of the law or VA issue and continuously from that date to the date of claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). The key issue before the Board in determining whether an earlier effective date is warranted pursuant to 38 C.F.R. § 3.114(a), then, is whether the Veteran was diagnosed with CAD prior to August 31, 2010. The claims file currently includes records from Long Beach VA Medical Center (VAMC), which show that the Veteran was treated at that facility as early as January 2010. The available records show that he was seen in late February 2010 for a vascular surgery conference. Unfortunately, no diagnoses are included in that treatment record, and the next time that the Veteran sought treatment at that facility was in May 2014. While currently available records from 2010 do not, therefore, confirm a diagnosis of CAD at that time, subsequent VA treatment records shed further light on the question of when the Veteran was first diagnosed with CAD. A July 2014 VA treatment record shows a diagnosis of three-vessel CAD, and subsequent records show that the Veteran underwent a coronary artery bypass graft in December 2014. A March 2018 VA treatment record notes that the Veteran underwent an abdominal aortic aneurysm repair in 2010. A May 2018 VA treatment record notes a diagnosis of "Coronary Artery Disease PCI 2/2010," indicating that the Veteran underwent percutaneous coronary intervention (PCI) at that time, which is a procedure involving the blood vessels in the heart. Finally, an October 2018 VA cardiology clinic treatment note shows under past medical history "CAD with PCI 2/2010." While acknowledging that the May 2018 and October 2018 VA treatment records at least suggest that the Veteran may have been diagnosed with CAD in 2010, the Board emphasizes that there are currently no records in the claims file which definitively show that the Veteran was diagnosed with CAD at that time. At present, the first evidence of a definitive diagnosis of CAD in the claims file is from July 2014. However, as noted, it also appears that the Veteran underwent surgical repair of an abdominal aortic aneurysm in 2010. The appellant testified that the procedure was performed at Irvine Hospital, and that the Veteran was diagnosed with CAD at the same time. To date, the claims file contains no records from that facility. Because records from Irvine Hospital could have a bearing on the outcome of the appellant's claim, the Board finds that a remand to obtain them is warranted. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). The Board also notes that while it seems clear from the claims file that the Veteran underwent a PCI procedure in 2010, it is not clear where that procedure was performedwhether at the same time and at the same facility as the abdominal aortic aneurysm repair, or at a different facility and/or different time. Because those records could also have a bearing on the outcome of the appellant's claim, efforts to obtain records of the 2010 PCI procedure should also be undertaken. This matter is REMANDED for the following action: 1. Ask the appellant to provide a release for records of treatment pertaining to the abdominal aortic aneurysm repair surgery the Veteran underwent in 2010 at Irvine Hospital in Irvine, California, to identify and provide a release for records of treatment pertaining to the PCI procedure he underwent the same year, and to identify and provide a release(s) for records of any other outstanding private treatment there may be that might pertain to the issue on appeal. If she provides the necessary release(s), assist her in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the appellant and her representative should be notified and offered the opportunity to submit the records themselves. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and her representative should be issued a supplemental statement of the case. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.