Citation Nr: 21074571 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-51 335 DATE: December 15, 2021 ORDER Entitlement to an effective date earlier than May 22, 2016 for the grant of service connection for a heart disability is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for a service-connected heart disability is remanded. Entitlement to service connection, to include on a secondary basis, for right lower extremity edema is remanded. Entitlement to service connection, to include on a secondary basis, for left lower extremity edema is remanded. Entitlement to service connection, to include on a secondary basis, for a hernia is remanded. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for a heart disability was received on May 22, 2017. No earlier claim for entitlement to service connection for a heart disability exists in the record. 2. The effective date of the applicable liberalizing law that added ischemic heart disease (including CAD) to the list of diseases presumptively associated with herbicide exposure is August 31, 2010. CONCLUSION OF LAW The criteria for an effective date prior to May 22, 2016, for the award of service connection for a heart disability have not been satisfied. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.114, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an earlier effective date for the grant of service connection for a heart disability The Veteran asserted on his July 2017 notice of disagreement that he should be awarded an earlier effective date for his service-connected heart disability because he filed a claim for entitlement to service connection for PTSD in July 2006 and during the resulting VA examination, the VA examiner noted that heart disease was integral to understanding the Veteran's PTSD. A review of the Veteran's November 2006 VA examination for his service-connected PTSD states that significant non-psychiatric illness, injury, or hospitalizations included coronary artery bypass surgery in 2006. Otherwise, the November 2006 VA examination makes no other mention of the Veteran's service-connected heart disability. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a Veteran shall be the day following the date of discharge or release. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). The implementing regulation states that the effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r). If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the Veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114 (a)(3). On May 22, 2017, the Veteran filed a claim for entitlement to service connection for a heart condition based on a presumptive basis due to herbicide exposure. The Veteran was awarded service connection for Coronary Artery Disease (CAD) in a July 2017 rating decision. The grant of service connection for CAD was based upon a presumptive link to the Veteran's in-service herbicide exposure, but the CAD in particular was established as service-connected on the basis of liberalization of the law defining the presumption. Ischemic heart disease was added to the list of presumptive disabilities on August 31, 2010. See 75 Fed. Reg. 53, 202 (August 31, 2010). See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions for effective date assignments 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 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. See 38 C.F.R. § 3.816. 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. Ischemic heart disease was not added to the list of presumptive disabilities until August 31, 2010. See 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases, to include coronary artery disease. Id. Given the foregoing, the Board concludes the Veteran is a Nehmer class member as defined in the law. 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) and (c)(2). When none of the requirements of 38 C.F.R. § 3.816 are met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816 (c)(4). The claims file does not contain any communication received by VA from the Veteran prior to May 22, 2017, that may be reasonably construed as a formal or informal claim of entitlement to service connection for a heart disability, to include CAD. See 38 C.F.R. §§ 3.151, 3.155. The Board acknowledges the argument put forth by the Veteran on his July 2017 notice of disagreement that a VA examiner determined that his heart disease was integral to understanding his PTSD and therefore he should be awarded an effective date in July 2006. However, review of the November 2006 VA examination simply reveals that the Veteran's coronary artery bypass surgery was listed as a prior major surgery but not that such surgery was integral to understanding the Veteran's PTSD. Moreover, nothing affiliated with the claims file in 2006 indicates whatsoever or can remotely be interpreted as a claim for entitlement to service connection for a heart disability as suggested by the Veteran. There was no claim or VA determination regarding entitlement to service connection for a heart disability, to include CAD, prior to May 22, 2017. Accordingly, none of the requirements of 38 C.F.R. § 3.816 are met; the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. As discussed above, 38 C.F.R. § 3.400 provides that the receipt of claim in May 2017 is later than any earlier date upon which entitlement may have arisen, the Veteran is not entitled to an effective date earlier than May 2017, under the provisions of 38 C.F.R. § 3.400. Thus, the only remaining avenue for an earlier effective date in this case is through 38 C.F.R. § 3.114. Under 38 C.F.R. § 3.114, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). 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. 38 C.F.R. § 3.114 (a)(1). In this case, the grant of service connection for CAD was due to a liberalizing change in the law. The AOJ identified a May 2017 claim as that associated with the grant of service connection for CAD. The Veteran identified 2006 as the year in which an earlier effective date should be established based on a mention of the Veteran's coronary bypass surgery in the November 2016 VA examiner's report for his PTSD. However, as discussed previously, the Board finds that nothing in the November 2016 VA examiner's report addressing the Veteran's service-connected PTSD remotely indicates that the Veteran was attempting to file a claim for entitlement to service connection for a heart disability. The Board's review of the record does not otherwise reveal any earlier claim for service connection for CAD. As there has been no earlier claim for service connection for CAD, and there has been no prior adjudication denying service connection for CAD, it furthermore follows that the conditions for entitlement to an earlier effective date under the provisions of 38 C.F.R. § 3.816 Nehmer have not been met in this case. Accordingly, the earliest effective date available to the Veteran is one year prior to the date of application, which in this case is May 22, 2016, the current effective date awarded to the Veteran. Since there was no earlier claim for entitlement to CAD which could result in an earlier effective date, no earlier effective date is warranted. The Veteran has not otherwise identified any alternative applicable facts, laws, regulations, or other manner of theory that may authorize any effective date earlier than May 22, 2016, for the award of service connection for CAD in this case. Accordingly, the appeal for an effective date prior to May 22, 2016, for the grant of service connection for CAD must be denied as a matter of law. The law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a service-connected heart disability is remanded. The Veteran's most recent VA examination evaluating the severity of his service-connected CAD was over 4 years ago in June 2017. During the June 2017 VA examination, the VA examiner determined that exercise stress testing was not without significant risk. The VA examiner was also unable to provide an estimated METs level due solely to the cardiac condition because the VA examiner was unable to differentiate impacts caused by the Veteran's other diagnoses of asthma and COPD. On remand, the VA examiner should administer or explain why the VA examiner was unable to administer an exercise stress test. In addition, the VA examiner should attempt to estimate the level of impairment caused by the Veteran's service-connected CAD verse his non-service-connected asthma and COPD. Accordingly, the Board finds that remand is required for a VA examination addressing the current severity of the Veteran's service-connected CAD. 2. Entitlement to service connection, to include on a secondary basis, for right lower extremity edema is remanded. 3. Entitlement to service connection, to include on a secondary basis, for right lower extremity edema is remanded. 4. Entitlement to service connection, to include on a secondary basis, for a hernia is remanded. The Veteran was afforded an in-person VA examination for his service-connected heart disability in June 2017. The VA examiner noted that the Veteran had trace edema in the right lower extremity and mild edema in the left lower extremity. Lastly, with regard to other pertinent findings related to the Veteran's service-connected heart disability, the VA examiner noted that the Veteran had a midline hernia at the lower end of a mid-sternal scar. On his July 2017 notice of disagreement, the Veteran asserted that he had bilateral lower extremity edema secondary to his heart disease and also a hernia secondary to coronary artery bypass graft (CABG). On his September 2017 VA Form 9, the Veteran's representative asserted that edema of the lower extremities and a hernia were secondary to the Veteran's CABG and should be awarded service connection. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the severity of the Veteran's service-connected heart disability and to determine the nature and etiology of the Veteran's hernia and bilateral edema. The Veteran's claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: (a.) Opine as to the current severity of the Veteran's service-connected CAD. If an exercise stress test is unable to be performed, the VA examiner should explain why such testing was not performed. The VA examiner should estimate, if possible, the level of impairment caused only by the Veteran's service-connected CAD versus the Veteran's non-service-connected asthma and COPD. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right or left lower extremity edema is caused by or etiologically related to his service-connected CAD? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's right or left lower extremity edema was aggravated (any incremental increase in the edema beyond its normal progression) by his service-connected CAD, or any other service-connected disability? If it is determined that the right or left lower extremity edema is aggravated by a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hernia is caused by or etiologically related to his service-connected CAD? (e.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hernia was aggravated (any incremental increase in the edema beyond its normal progression) by his service-connected CAD, or any other service-connected disability? If it is determined that the hernia is aggravated by a service-connected disability, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation. 2. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi, 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.