Citation Nr: 21009581 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-09 328 DATE: February 22, 2021 ORDER Entitlement to revision of a December 2012 rating decision which established an effective date of December 10, 2002 for the granting of service connection for coronary artery disease (CAD), to include on the basis of clear and unmistakable error (CUE) is denied. FINDING OF FACT 1. The Veteran is a Nehmer class member who is diagnosed with CAD. 2. The earliest claim which reasonably may be construed as a claim for service connection for heart disease was received on September 10, 2010. It was claimed as due to agent orange exposure. 3. Evidence of record at the time of the December 2012 rating decision showed that the Veteran had diagnostic evidence suggestive of a possible heart condition in 1989. 4. There is no evidence or document in the claims file received by VA prior to September 10, 2010 which can reasonably be construed as a claim for service connection for CAD. 5. This issue represents an appeal of the rating decision that initially granted service connection; therefore, there is no final rating decision that is subject to a collateral claim of clear and unmistakable error. CONCLUSION OF LAW The criteria for Entitlement to revision of a December 2012 rating decision which established an effective date of December 10, 2002 for the granting of service connection for coronary artery disease, to include on the basis of CUE have not been met. 38 U.S.C. §§ 5101, 5103, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.114, 3.151, 3.155, 3.159, 3.400, 3.816 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from February 1965 to February 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) granting an earlier effective date of December 10, 2002 for service connection for coronary artery disease. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2020. A transcript of the hearing is associated with the electronic claims file. Earlier Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110 (a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or liberalizing 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). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or liberalizing VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114 (a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or liberalizing VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114 (a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. Ischemic heart disease was included as a presumptive herbicide-related disease under 38 C.F.R. § 3.309 (e), which was made effective by VA as of August 31, 2010. See 75 Fed. Reg. 53,702 (August 31, 2010). Nevertheless, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran’s Affairs. 38 C.F.R. § 3.816 (2014). The regulation, 38 C.F.R. § 3.816, defines Nehmer class members and sets forth effective date rules for Vietnam veterans that currently have a “covered herbicide disease,” or have died from a “covered herbicide disease.” In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. Nehmer Provision In pertinent part, a “Nehmer class member” is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1)(i). 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. As noted above, ischemic heart disease, to include coronary artery 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 that the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease. Id. ; see also Garza v. Shinseki, 480 Fed. Appx. 984, 987 (Fed. Cir. 2012) (specifically associating ischemic heart disease with Nehmer despite the language of 38 C.F.R. § 3.816 ). In the present case, the record reflects that the Veteran served in Vietnam and was diagnosed with a covered herbicide disease, namely coronary artery disease. Therefore, he is considered a “Nehmer class member.” The Nehmer regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) 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 May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). In these situations, 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. 38 C.F.R. § 3.816 (c)(1), (c)(2). The Veteran seeks an effective date of earlier than November 20, 2000, for the award of service connection for CAD. Moreover, 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 the Secretary. See 38 U.S.C. § 5101 (a); 38 C.F.R. § § 3.151 (a). The Board notes that, 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, among other things, 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, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s was received by VA prior to that date, the former regulations apply and are cited below. A claim is 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 an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § § 3.1 (p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Entitlement to revision of a December 2012 rating decision which established an effective date of December 10, 2002 for the granting of service connection for CAD, to include on the basis of CUE In the instant case, as the Veteran served in Vietnam and had a post service diagnosis of CAD, he is considered a Nehmer class member and, as such, the provisions of 38 C.F.R. § 3.816 are applicable. However, despite consideration of such provisions, the Board finds that an effective date prior to December 10, 2002, for the award of service connection for CAD is not warranted. The Veteran asserts that the RO committed a clear and unmistakable error (CUE) when it failed to properly apply the Nehmer provision resulting in the incorrect effective date of December 10, 2002 when his records show that he has had ischemic heart disease since the 1980’s. See NOD, December 2012; Third Party Correspondence, April 2015; Hearing Testimony, December 2016. Additionally, the Veteran contends that in 1980 he had 40 percent blockage and in 1997 he had 50-60 percent blockage. See NOD, December 2016. By history, on September 10, 2010, the Veteran’s informal claim for service connection for coronary artery disease (CAD) due to agent orange exposure was received by VA. See VA 21-4138, September 2010. A review of the evidence of record reflects that in October 1989 the Veteran was admitted to Thoracic Surgery Service for evaluation of his dysphagia and a MUGA scan revealed an ejection fraction of 49 percent. See VA 10-7131, November 1989. A note from the admission reflects that cardiology was consulted because of the low ejection fraction on the MUGA scan and it was noted that he did not require further cardiac evaluation. Id. In July 1997, the Veteran underwent a coronary angiography. See Medical Treatment Record-Non-Government Facility, October 2012. The coronary angiography revealed mild irregularities in the left main coronary artery, mild diffuse irregularities in the left circumflex artery, minimal luminal irregularities in the right coronary artery, and moderate diffuse disease in the left anterior descending artery. Id. A left ventriculography revealed normal left ventricular function with ejection fraction estimated at 60 to 65 percent. A September 30, 2002 VA examination report reflects that the Veteran reported that he had heart problems and the records suggested that he had leucocytosis and achalasia. See VA Examination, September 2002. The Veteran indicated that he was prescribed medications, but was unsure of the names. Id. An October 31, 2002 VA physicians note reflects a diagnosis of CAD. See Capri, June 2003. An October 2012 rating decision granted service connection for CAD associated with herbicide exposure with an evaluation of 30 percent effective August 31, 2010. A December 2012 rating decision granted an earlier effective date of December 10, 2002 for service connection for CAD with an evaluation of 10 percent; and an evaluation of 30 percent from January 6, 2009. The RO incorrectly cited a December 10, 2002 statement as a claim for heart disease as the bases for assigning the effective date; a review of the record reveals no such statement. However, the Board will not disturb the RO’s favorable finding. In a May 2015 statement, the Veteran’s representative contended that there was clear and unmistakable error because the Veteran was not assigned an effective date of from 1980 for this issue. However, since this issue represents an appeal of the rating decision that initially granted service connection, there is no final rating decision that is subject to a collateral claim of clear and unmistakable error. The Board acknowledges the Veteran’s contention that he had a 40 percent blockage in 1980 and 50 to 60 percent blockage in 1997. The Board notes, that the evidence of record reflects that the numbers recorded in his record are ejection fractions and not percentage of blockage. However, there is no evidence of record that could be construed as an informal or formal claim for CAD prior to September 9, 2010. In sum, the Veteran was not denied compensation between September 25, 1985 and May 3, 1989; a claim for service connection was not pending before VA on May 3, 1989; and his initial claim was not received within one year from the date of his separation from service. Therefore, the effective date shall be the later of the date such a claim for service connection was received by VA or the date the disability arose. See 38 C.F.R. § 3.816 (2). In this case, the Veteran did not file a claim of entitlement to service connection for CAD or a claim that can reasonably be construed as a claim for service connection for CAD prior to September 2010. The Board notes that the earliest instance of a diagnosis of CAD was in October 31, 2002; however, the regulation requires that the effective date be the later of the date the claim was received or the date the disability arose. As such, there is no legal authority for the Board to assign an earlier effective date, as the RO has already assigned the earliest possible effective date for the award of service connection for coronary artery disease. Therefore, the Veteran’s claim for an earlier effective date of prior December 10, 2002 for the award of service connection for heart disease is denied. We also note the prior provisions of section 3.157. The Court has established that the regulation applies to only that which was service connected. Although the AOJ may have granted the 2002 date on the basis of this regulation, we may not ignore the standards established by the Court. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.