Citation Nr: 21009424 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-44 782 DATE: February 22, 2021 ORDER Entitlement to a disability rating greater than 10 percent, prior to August 25, 2009, and in excess of 60 percent, from December 1, 2009, (with a 100 percent rating from August 25, 2009 to November 31, 2009), for coronary artery disease is denied. Entitlement to an earlier effective date, prior to September 16, 2010, for the grant of service connection for small cell lung cancer is denied. Entitlement to an earlier effective date, prior to August 8, 2011, for the grant of service connection for brain cancer is denied. Entitlement to an earlier effective date, prior to August 8, 2011, for the grant of special monthly compensation (SMC) based on aid and attendance is denied. FINDINGS OF FACT 1. Prior to August 25, 2009, the evidence of record does not show that the Veteran’s coronary artery disease was manifested by symptoms worse than a workload from 7 to 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication treatment. 2. From December 1, 2009, the most probative evidence of record shows that the Veteran’s coronary artery disease was at worst manifested by METs levels of greater than 3 but no greater than 5 resulting in dyspnea and fatigue. 3. There is no indication or allegation that the Veteran filed a claim seeking service connection for lung cancer prior to September 16, 2010. 4. The Veteran did not file a claim of service connection for brain cancer; instead, the RO granted entitlement to service connection this disability based upon evidence showing that the Veteran’s service-connected lung cancer had metastasized to his brain. 5. The Veteran’s claim for SMC based on the need for aid and attendance was received on August 17, 2011; entitlement to the benefit arose on August 8, 2011. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent, prior to August 25, 2009, and in excess of 60 percent, from December 1, 2009 for coronary artery disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7017. 2. The criteria for an effective date, prior to September 16, 2010, for the grant of service connection for small cell lung cancer have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.400, 3.816. 3. The criteria for an effective date, prior to August 8, 2011, for the grant of service connection for brain cancer have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. 4. The criteria for an effective date earlier than August 8, 2011, for the award of SMC based on the need for aid and attendance are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1969 to April 1971, with service in Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal, and Army Commendation Medal. The Veteran died in September 2011. The Appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2011 and September 2013 by the Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the undersigned Veterans Law Judge (VLJ) at a March 2019 hearing. A transcript of the hearing has been added to the Veteran’s file. In August 2019, the Board remanded the claims for further development. The Board finds that the remand directives have been substantially complied with respect to the claims (the Board directed that additional treatment records and VA opinion be obtained, which has been completed) and therefore will proceed with a decision on the claims.  The appellant was formerly represented by a national Veterans Service Organization; in November 2020, the appellant asked to revoke this representation. Consistent with the appellant’s wishes, she is considered unrepresented before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. Entitlement to a disability rating greater than 10 percent, prior to August 25, 2009, and in excess of 60 percent, from December 1, 2009, (with a 100 percent rating from August 25, 2009 to November 31, 2009), for coronary artery disease An August 2011 rating decision granted service connection for the Veteran’s coronary artery disease and assigned a 10 percent rating, effective March 6, 2007. A 100 percent evaluation was assigned from August 25, 2009 to November 31, 2009 and a 60 percent evaluated was assigned from December 1, 2009. The appellant is seeking a rating higher than 10 percent prior to August 25, 2009 and in excess of 60 percent from December 1, 2009. The Veteran’s heart disability was rated under Diagnostic Code 7017 (coronary artery bypass surgery). Under Diagnostic Code 7017, a 10 percent rating requires workload greater than 7 metabolic equivalents (METs) but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; requires continuous medication. A 30 percent rating requires workload greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year or; workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating requires chronic congestive heart failure or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7017. VA treatment records showed that the Veteran underwent cardiac catheterization in January 2003 which confirmed the presence of coronary artery disease. In a February 2006 treatment record, it was noted that following the cardiac catheterization the Veteran’s coronary artery disease was controlled with the use of various medications. Subsequent VA treatment records show that the Veteran was admitted to the hospital on August 25, 2009 as a result of a myocardial infarction. The Veteran underwent coronary artery bypass grafting on the same day. He was discharged on August 28, 2009. On VA examination in March 2010, the Veteran reported taking continuous medication for treatment of heart disease. There was no evidence of congestive heart failure, dizziness or syncope. There was a positive history of fatigue and dyspnea. The examiner referenced results of an October 2009 echocardiogram which showed evidence of left ventricular hypertrophy with left ventricular ejection fraction of 40 percent. The examiner estimated that the Veteran’s cardiac workload was greater than 5 METs to 7 METs. Prior to August 25, 2009, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for the service-connected CAD. During this period, the evidence of record showed use of continuous medication for treatment of the Veteran’s coronary artery disease. There was no evidence of a workload greater than 5 METs but not greater than 7 METs that resulted in dyspnea, fatigue, angina, dizziness or syncope that would have warranted a higher evaluation during this period. For the time period from December 1, 2009, evidence of record does not show that the Veteran’s coronary artery disease was manifested by chronic congestive heart failure or; workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of less than 30%. Accordingly, the schedular criteria for a rating in excess of 10 percent prior to August 25, 2009 and in excess of 60 percent from December 1, 2009 for coronary artery disease is denied. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. After a final disallowance of a claim, the effective is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). 2. Entitlement to an effective date, prior to September 16, 2010, for the grant of service connection for small cell lung cancer In a September 2013 rating decision, the RO initially granted service connection for small cell lung cancer on a presumptive basis, as to due to herbicide agent exposure, effective September 29, 2010, the date that VA medical records indicated that the Veteran was diagnosed with lung cancer. The Appellant testified at the March 2019 Board hearing that the Veteran’s lung cancer should have been discovered earlier, but that the VA treated the Veteran for COPD and did to perform testing to check for lung cancer before September 2010. The claim for remanded for a VA medical opinion addressing whether the Veteran’s lung cancer should have been diagnosed earlier. In a February 2020 report, a VA examiner explained that the Veteran had a chest x-ray in January 2003 that was negative for any findings suspicious of lung cancer. The examiner stated that chest x-ray in February 22, 2007 showed no acute cardiopulmonary findings and no interval change compared to a December 2005 report. Given that the Veteran’s chest x-rays showed no changes suspicious for lung cancer until September 2009 which ultimately led to a bronchoscopy and a diagnosis of lung cancer, the examiner opined that it was less likely that the Veteran’s lung cancer was misdiagnosed as COPD as there were no suspicious findings indicating a need for a bronchoscopy prior to 2010. In a June 2020 rating decision, the RO assigned an effective date of September 27, 2010 for the grant of service connection for small cell lung cancer. Further VA medical opinion was obtained in July 2020. In the July 2020 report, the examiner noted that the first mention on radiographic report of an underlying mass and/or neoplastic adenopathy was in a September 16, 2010 CT chest report. The examiner stated that there was no medical evidence to show that the Veteran’s lung cancer should been diagnosed earlier than the September 2010 report. In an August 2020 rating decision, the RO further assigned an effective date of September 16, 2010 for the grant of service connection for small cell lung cancer. As noted, the effective date of the award of an evaluation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). There are exceptions to this rule, however. 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. 38 C.F.R. §§ 3.400(p), 3.114(a). Lung cancer was added to the list of diseases subject to service connection on a presumptive basis effective June 9, 1994. In this context, VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides pursuant to a group of court cases that are generally referred to as “Nehmer” cases. Under 38 C.F.R. § 3.816, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. (2) If the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was 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 will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation if the claimant’s application or 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 disability; or 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, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. § 3.816(c). The Veteran was a Nehmer class member, as he served in Vietnam and was diagnosed with lung cancer, a covered herbicide disease under 38 C.F.R. § 3.309(e). However, the Board finds there is no legal basis on which to award an effective date earlier than September 16, 2010. In this case, the record shows that the claim for shortness of breath was denied in a February 2008 rating decision. The medical evidence at the time showed that the Veteran complained of shortness of breath associated with his cardiac condition. Significantly, the Board’s review of the record reveals the Veteran did not submit a claim or other communication for lung cancer prior to September 16, 2010; nor has the Appellant identified any such claim or communication. Indeed, there is no indication or allegation that the Veteran filed for and was denied compensation for lung cancer between September 25, 1985, and May 3, 1989, or that he had a claim for benefits for lung cancer pending before VA between May 3, 1989, and June 9, 1994, the effective date of the applicable liberalizing law that added lung cancer to the list of diseases presumptively associated with herbicide exposure. Therefore, the exceptions afforded Nehmer class members are not applicable in this case. Accordingly, the effective date of the award of service connection for lung cancer shall be determined in accordance with 38 C.F.R. § 3.114 and 3.400 which is the date the claim was received, or the date entitlement arose, whichever is later. As noted, the earliest evidence reflecting a diagnosis of lung cancer is found in a September 16, 2010 CT chest report. Therefore, September 16, 2010, is the earliest possible effective date for the award of service connection for small cell lung cancer. There is no doubt to be resolved, and the appellant’s claim is denied. 3. Entitlement to an effective date, prior to August 8, 2011, for the grant of service connection for brain cancer In a September 2013 rating decision, the RO granted service connection for brain cancer, effective August 8, 2011. The medical evidence dated August 8, 2011, showed that the Veteran’s lung cancer had metastasized to his brain. The Appellant is seeking an earlier effective date for the grant of service connection for the Veteran’s brain cancer, but she has not identified a specific date from which she thinks service connection should be granted. As noted, the effective date of a claim granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. In this case, the Veteran did not file a claim seeking service connection for brain cancer; instead, the RO granted service connection for this disability based on the date that medical records showed that the cancer had metastasized to the brain. Therefore, there is no basis on which to assign an earlier effective date for this disability and, as such, no doubt to be resolved in this matter. 4. Entitlement to an earlier effective date, prior to August 8, 2011, for the grant of SMC based on aid and attendance SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran’s claim for aid and attendance was received on August 17, 2011. As noted above, VA treatment records show that in September 2010, the Veteran was diagnosed with small cell lung cancer. The disease eventually metastasized to his brain and on August 8, 2011, the VA Medical Center requested that the Veteran receive hospice care. The Veteran received hospice care until his death in September 2011. It is therefore factually ascertainable that the Veteran met the criteria for SMC based on the need for aid and attendance of another person on August 8, 2011, the date that the RO has already set for the grant of SMC benefits. There is no evidence that the Veteran met the criteria for SMC prior to the date that hospice was ordered. Therefore, August 8, 2011, is the earliest possible effective date that the Veteran met the criteria for SMC based on the need for aid and attendance. The claim is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.