Citation Nr: 21009867 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-04 557 DATE: February 23, 2021 ORDER An effective date earlier than November 1, 1999, for the award of service connection for coronary artery disease (CAD) is denied. An initial disability rating in excess of 30 percent for CAD prior to December 13, 2010, is denied. FINDINGS OF FACT 1. The Veteran was granted service connection for CAD effective November 1, 1999, the date the disability first manifested, prior to his application for CAD on November 29, 1999. 2. Prior to December 13, 2010, the Veteran’s CAD was not manifested by more than one episode of acute congestive heart failure; workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to November 1, 1999, for the award of service connection for CAD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.309(e), 3.400, 3.816. 2. Prior to December 13, 2010, the criteria for an initial rating in excess of 30 percent for CAD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1959 to August 1963, and February 1964 to January 1968. He was awarded the Purple Heart medal, among others. He died in February 2011, and the appellant, who is the Veteran's widow, has been substituted in his place to pursue his claim. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that during the course of the appeal an earlier effective date of November 1, 1999, was granted. 1. An effective date earlier than November 1, 1999, for the award of service connection for CAD is denied. The appellant contends that an effective date of November 1999 is warranted for ischemic heart disease. Specifically, the appellant’s representative asserts that the effective date of the award should be November 29, 1999 per Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002). See March 2012 Notice of Disagreement (NOD). The appellant contends that the Veteran had cardiovascular issues in 1999, as evidenced by the cardiac amyloidosis she believes the Veteran had at the time of his aortofemoral surgery in 1999 and was the ultimate cause of his death (the appellant noting the Veteran’s cause of death as cardiac failure due to cardiac amyloidosis with hydronephrotic dysplasia of the right kidney). See November 2012 VA Form 21-4138. By way of background, the Veteran filed a claim for a cardiovascular disorder on November 29, 1999. The claim was denied in November 2000 and June 2001 rating decisions. The Veteran submitted another claim for CAD as related to herbicide agent exposure. See November 2010 Correspondence. The Veteran died in February 2011 and the appellant was substituted in the claim. A November 2011 rating decision granted the service connection claim for CAD at 30 percent, effective November 18, 2010, and 100 percent from December 13, 2010. The appellant submitted a NOD in March 2012 appealing the effective date of the grant of service connection, which was denied in a July 2012 rating decision. Both the earlier effective date for service connection and the evaluation of the same were appealed with a NOD in November 2012. A Statement of the Case (SOC) was issued in November 2014 denying both issues, which were then appealed to the Board via a December 2014 VA Form 9 and remanded by the Board in October 2019 for a VA examination to determine when the Veteran’s CAD arose. Based on the February 2020 medical evaluation, the RO granted an earlier effective date for service connection, for the purposes of accrued benefits, of November 1, 1999. Both issues are still on appeal and back at the Board. 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.” 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 before October 1, 2002 pursuant to the Agent Orange Act of 1991. Ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. 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. Here, the Veteran served in the Republic of Vietnam during the Vietnam War era and has a diagnosis of coronary artery disease. Accordingly, the Board concludes that 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; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816 (c)(1)-(3). If a class member’s claim for disability for the covered herbicide disease was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law, as in this case, 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)(2). The Veteran filed his original claim for CAD on November 29, 1999. The medical evidence shows the Veteran’s CAD arose prior to November 29, 1999. See February 2020 VA examination. However, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). The effective date is not the date the disability arose, but rather the date the claim was received by VA. Accordingly, the effective date would be November 29, 1999. As the RO has made a favorable finding of an effective date of November 1, 1999, it will not be disturbed by the Board. Additionally, the Board notes that the representative, on behalf of the appellant, has maintained the contention that the effective date of service connection for the Veteran’s CAD should be November 1999. Furthermore, there is no evidence in the record that a claim was received prior to November 1, 1999 that relates to any disabilities that could reasonably be construed as an herbicide agent-related disability affected by Nehmer. Therefore, there is no basis for assigning an effective date for service connection for CAD prior to November 1, 1999. Consequently, the Veteran’s claim for entitlement to an effective date earlier than November 1, 1999 for service connection for CAD is denied. 2. An initial disability rating in excess of 30 percent for CAD prior to December 13, 2010, is denied. At the outset, the Board notes the appellant’s disagreement with the evaluation of the 30 percent rating for the Veteran’s CAD, as noted in the November 2012 VA Form 21-4138. And the Board acknowledges her contention that the Veteran had amyloidosis in 1999 and that the Veteran should be service-connected from that date for this disability at 100 percent under DC 7717, as it is associated with exposure to herbicide agents; however, while the Board is sympathetic to this contention, this issue is not currently on appeal before the Board as it has not yet been adjudicated in the first instance by the RO. If the appellant seeks service connection for this disability, she is encouraged to file a claim with the RO. The Veteran’s CAD is currently assigned an initial rating of 30 percent prior to December 13, 2010, and a 100 percent rating thereafter. The period for appellate consideration is from the effective date of service connection, or November 1, 1999. The Board notes that the period from December 13, 2010, the date the Veteran had coronary artery bypass graft surgery, is not before the Board as the Veteran is rated at 100 percent, which represents a full grant of benefits and is the maximum evaluation authorized under Diagnostic Code 7005 for arteriosclerotic heart disease. No other DC is more appropriate for evaluation and entitlement to an extraschedular evaluation has not been raised by the appellant, her representative, or the record. The Veteran has also already been granted special monthly compensation based on being housebound due to the 100 percent rating for CAD plus an additional combined 60 percent disabling from separate disabilities. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The service-connected CAD has been rated under 38 C.F.R. § 4.104, DC 7005. DC 7005 provides for a 10 percent rating when a workload of greater than 7 METs but not greater than ten METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with evidence of a requirement for continuous medication. A 30 percent rating is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned with more than one episode of acute congestive heart failure in the past year; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. Evidence during the appeal period reveals there are complaints of fatigue and dizziness. See January 2010 VA treatment note; February 2010 VA treatment note. The Veteran reported he had difficulty going up slopes and that he gets short of breath causing him to become dizzy. See March 2010 VA treatment note. There is a notation in the medical records of other medications being discontinued due to a clear exacerbation of angina. See May 2010 VA treatment note. There is a notation that the Veteran complained of frequent episodes of dizziness when getting out of his chair, walking up a hill, etc. See June 2010 VA treatment note. It was noted that the Veteran had a syncopal episode. See August 2010 VA treatment note. Dyspnea was also noted in the records. See September 2010 VA treatment record; November 2010 VA treatment record. VA treatment records revealed there were complaints of fatigue and dizziness, including frequent episodes of dizziness when getting out of his chair, walking up a hill, etc.; reports that the Veteran had difficulty going up slopes and that he had periods of shortness of breath, causing him to become dizzy; medications being discontinued due to a clear exacerbation of angina; a syncopal episode; and notations of dyspnea. See January 2010 VA treatment note; February 2010 VA treatment note; March 2010 VA treatment note; May 2010 VA treatment note; June 2010 VA treatment note; August 2010 VA treatment note; September 2010 VA treatment record; November 2010 VA treatment record. Regarding left ventricular ejection fracture (LVEF) there was a reading of 72 percent, 60 percent, and 55-70 percent in the VA treatment notes on February 2010, November 2010, and December 2010, respectively. The 60 percent LVEF is evidence of ventricular hypertrophy, which the RO used to establish a 30 percent evaluation prior to December 13, 2010. In summation, the 30 percent disability rating stands as the Veteran’s disability was manifested by symptoms of dyspnea, fatigue, angina, dizziness, and syncope, but his LVEF remained above 50 percent. To the extent the appellant asserts that a higher rating is warranted at any time during the appeal period, she is not competent to assess the severity of the Veteran’s heart condition absent medical testing such as that noted in the VA treatment records. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted for the period prior to December 13, 2010, and the claim is denied. Mike Sobiecki Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.