Citation Nr: 21010321 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-42 710 DATE: February 24, 2021 ORDER Entitlement to an effective date earlier than February 20, 2014, for the grant of service connection for coronary artery disease, is denied. Entitlement to an effective date earlier than February 20, 2014, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. On February 20, 2015, the Veteran submitted a fully developed claim application for service connection for coronary artery disease and PTSD; there are no earlier, unadjudicated claims of record. 2. The RO assigned effective dates of February 20, 2014, for the grants of service connection for coronary artery disease and PTSD pursuant to 38 U.S.C. § 5110(b)(2)(A). CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 20, 2014, for the grant of service connection for coronary artery disease, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 2. The criteria for an effective date earlier than February 20, 2014, for the grant of service connection for PTSD have not been 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 in the U.S. Army from September 1965 to August 1967. These matters come before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the claims folder. Earlier Effective Date – Coronary Artery Disease Generally, the effective date of an award of compensation 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). The effective date of an award of disability compensation to a Veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, could be considered an informal claim. Such informal claim had to identify the benefit sought. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it would be considered filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening would be accepted as a claim. 38 C.F.R. § 3.155 (2014). With respect to earlier effective date claims for diseases presumed to be caused by exposure to herbicide agents, VA has issued special regulations. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). A Nehmer class member is identified as a Vietnam Veteran who has a covered herbicide-related disease. 38 C.F.R. § 3.816(b)(1)(i). The term “covered herbicide disease” includes coronary artery disease. 38 C.F.R. §§ 3.307, 3.309(e), 3.816(b)(2)(i). The Veteran is a Vietnam Era Veteran with verified service in the Republic of Vietnam. The Veteran has also been awarded service connection for coronary artery disease which, as noted above, is a disease presumed to be associated with exposure to certain herbicide agents. 38 C.F.R. § 3.309(e). 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 for 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. See 38 C.F.R. § 3.816. In addition, the Board notes that Section 506 of PL 112-154 pertains to changes made to 38 U.S.C. § 5110(b)(2) in August 2012. Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the fully developed claim (FDC) process. Section 506 of PL 112-154 was codified as 38 U.S.C. § 5110(b)(2)(A). The provisions of 38 U.S.C. § 5110(b)(2)(A) provide that “the effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” A claim of service connection submitted through the FDC process by definition meets the statutory requirement of “an original claim that is fully-developed.” See 38 U.S.C. § 5110(b)(2)(B). The provisions of 38 U.S.C. § 5110(b)(2)(A) do not establish that the effective date for claims filed under the FDC process should automatically be one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the application for service connection. Here, the record shows the Veteran filed an FDC application for coronary artery disease that was received by VA on February 20, 2015. The RO considered the February 20, 2015, claim to be informal and the Veteran was asked to provide additional information. He filed another FDC application on March 13, 2015, well within a year. The RO then assigned an effective date of the grant of service connection for coronary artery disease to February 20, 2014, one year prior to the date that the Veteran’s February 20, 2015, claim was received. The Board has considered whether an earlier effective date would be warranted under 38 C.F.R. § 3.816. However, the Veteran did not file an informal or a formal claim, or express in writing an intent to file a claim for service connection for coronary artery disease prior to February 20, 2015, nor was he denied service connection for coronary artery disease in a decision issued between September 25, 1985 and May 3, 1989, or have a claim for disability compensation for coronary artery disease that was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and August 31, 2010. See 38 C.F.R. § 3.816. Therefore, an effective date earlier than February 20, 2014, is not warranted. The Board has also considered the provisions of 38 C.F.R. § 3.114. Pursuant to 38 C.F.R. § 3.114(a)(3), if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request if the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. Here, the Veteran filed a claim for service connection for coronary artery disease on February 20, 2015, years after the effective date of the liberalizing law at issue – August 31, 2010. However, even if he met all the eligibility criteria for the benefit on August 31, 2010, he has already been assigned an effective date of February 20, 2014, one year prior to the date that his claim was received by VA. Accordingly, the provisions of 38 C.F.R. § 3.114 do not provide for an earlier effective date in this case. The Board recognizes that the Veteran’s statements that his coronary artery disease existed for years before he filed a claim for service connection. However, the mere presence of a disability does not warrant an earlier effective date. See Brannon v. West, 12 Vet. App. 32 (1998). In sum, the Board finds that the earliest effective date legally possible has been assigned for the grant of service connection for coronary artery disease. An effective date for service connection earlier than February 20, 2014, is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board empathizes with the Veteran and his request for an earlier effective date had he known that he could apply for benefits. However, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. See OPM v. Richmond, 496 U.S. 414 (1990). Earlier Effective Date - PTSD Applying the relevant law, the earliest possible effective date for the grant of service connection for PTSD is the effective date assigned – February 20, 2014. In this respect, the Board notes that the Veteran submitted an FDC application on February 20, 2015. The RO considered the February 20, 2015, claim to be informal and the Veteran was asked to provide additional information. The Veteran then filed an FDC application in March 2015. The RO then granted service connection for PTSD, assigning an effective date of February 20, 2014 – one year prior to the date that the Veteran’s February 20, 2015, claim was received by VA. As the Veteran testified before the undersigned, he did not file a formal or informal claim for service connection for PTSD prior to February 20, 2015. Indeed, a review of the record reflects no claim for PTSD prior to February 20, 2015, and an effective date earlier than February 20, 2014, is not warranted. The Board acknowledges that the Veteran’s statements that his PTSD existed since his service in Vietnam. However, the mere presence of a disability does not warrant the assignment of an earlier effective date. Accordingly, the Veteran’s appeal for an earlier effective date for service connection for PTSD is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Again, the Board recognizes the Veteran for his honorable service and empathizes with him and his report of chronic PTSD symptoms since Vietnam. However, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.