Citation Nr: 21076021 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 19-00 910 DATE: December 22, 2021 ORDER Entitlement to an earlier effective date of October 4, 2012, and no earlier, for the award of service connection for coronary artery disease, status post myocardial infarction (CAD) is granted. FINDING OF FACT On October 4, 2012, the VA received correspondence from the Veteran which can be construed as an informal claim for service connection for a heart disability. The evidence shows that the Veteran's heart condition, which can be considered ischemic heart disease (IHD) arose prior to the date of that initial informal claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 4, 2012, but no earlier, for service connection for CAD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1964 to August 1968. 1. Entitlement to an earlier effective date of October 4, 2012, but no earlier, for the award of service connection for CAD. By way of background, the Veteran is currently service connected for CAD effective from August 24, 2016. The RO granted service connection for this disability in the January 2017 rating decision on appeal. The RO assigned the effective date from August 24, 2016, as the date the Veteran filed a claim for this benefit. The Veteran disagreed with that determination. In a February 2017 statement, he argued that an earlier effective date should be assigned from June 2012 when he first "became ill [...] and almost died" from the condition. He contended that he first notified the RO about the illness in 2012 and requested that it be added to a pending claim. He had also submitted medical documentation at that time. In his December 2018 VA Form 9, he argued that those submitted medical records showed high blood pressure in May 2008, and an EKG that same month showed left ventricular hypertrophy. He argued that he made a claim for hypertension arising from heart disease in April 2011, which was denied in September 2011. He concluded that service connection should begin from when his heart disease first manifested, and not when he filed the claim. The RO denied an earlier effective date for service connection because (1) no claim for heart disease was received prior to August 24, 2016, and (2) the evidence did not show that the Veteran was diagnosed with heart disease by the date of the law change on August 31, 2010 (date of the law change adding ischemic heart disease (IHD), including CAD, to the list of diseases presumptively due to Agent Orange exposure). After a preliminary review of the record, the Board finds that the Veteran did file an earlier claim. Specifically, he filed an original claim of service connection for hypertension due to Agent Orange exposure in September 2011. During the development of that claim, he filed a statement in October 2012 claiming service connection for heart failure, severe left ventricle impairment with dilated cardiomyopathy (heart weakened and enlarged). He expressed his belief that the condition was due to Agent Orange exposure in Vietnam. With that claim, he included a Wikipedia article on dilated cardiomyopathy, plus private medical records showing treatment for cardiac failure. The RO issued a rating decision in January 2013. That rating decision denied service connection for multiple disabilities, including hypertension. With regard to hypertension, the RO found that, although the Veteran had verified service in Vietnam, hypertension was not a presumptive herbicide disease. The Veteran did not appeal that decision. (He filed a Notice of Disagreement (NOD) in June 2013, but only appealed other, unrelated issues.) Approximately three and one-half years later, in July 2016, he filed a request to reopen. He stated that he was requesting to reopen a claim for compensation due to Agent Orange exposure. He stated that his "original claim was denied but my situation has changed, and I am providing new information." Specifically, he was "claiming compensation due to [IHD] which is on your current list of presumptive diseases." He indicated that "[i]n June 2012 I had heart failure, but my claim was denied." He wrote that his heart condition had gotten worse with a heart attack occurring in January 2016. He felt it was clear that "the heart failure in 2012 was a complication from" his IHD. He concluded by asserting that he was "claiming compensation to be retroactive." This sequence shows that the Veteran first filed a claim of service connection for heart disease due to Agent Orange exposure in October 2012. That claim remained unadjudicated in the January 2013 rating decision. It does not appear reasonable at present to interpret the denial of service connection for hypertension as an implicit denial of service connection for heart failure. See Cogburn v. McDonald, 809 F.3d 1232, 1235 (Fed. Cir. 2016); Adams v. Shinseki, 568 F.3d 956, 962-63 (Fed. Cir. 2009). As such, it remained pending when he filed his petition to reopen in July 2016. Relatedly, it cannot be said at this point that his July 2016 claim was a separate and distinct claim from the earlier claim. The July 2016 claim on its face reflected his understanding that it was a continuation of the earlier claim of service connection for heart failure. He expressed his belief that it was the same underlying heart condition from 2012. His July 2013 claim reflected his intent to proceed on the basis that the claims were the same. His intent when filing the claim in July 2013 is paramount to construing its breadth as a continuation of the earlier, October 2012 claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the Board finds that the July 2013 claim must be considered as the same ongoing claim as that filed in October 2012 and has been ongoing since that time. See Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009). As such, the question then becomes whether it is factually ascertainable that he had CAD at any time since his October 2012 claim. Heart failure is not expressly identified in 38 C.F.R. § 3.309 (e) as a type of IHD. Hence, an earlier effective date can only be granted if either (a) heart failure is nonetheless shown to qualify within the generally accepted medical definition of IHD; (b) the Veteran's heart failure is shown to have been a manifestation of his IHD; or (c) the Veteran's CAD, even if not associated with the July 2012 episode of heart failure, nonetheless manifested earlier than August 24, 2016. See, e.g., Swain v. McDonald, 27 Vet. App. 219, 224 (2015). (Continued on the next page) In August 2019, the Board remanded the Veteran's claim to obtained additional medical records and an addendum opinion regarding establishing CAD/IHD during the earlier period prior to 2016. In a June 2021 opinion, a VA examiner, after a noted review of the Veteran's claims file and medical history, concluded that the Veteran's condition prior to 2016, to include as noted in 2012, was "as least as likely as not" part of the Veteran's latter diagnosis of CAD, considered to be IHD. The Board finds that such finding demonstrates that the Veteran's service-connected condition was "factually ascertainable" in 2012, and as the Veteran's informal claim for a heart condition as received by the VA on October 4, 2012, the Board must find that an earlier effective date reflecting that initial claim is warranted. Consequently, the Veteran's claim for an earlier effective date for the grant of service connection for CAD, must be granted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.