Citation Nr: 21012158 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-16 646 DATE: March 3, 2021 ORDER Entitlement to an earlier effective date prior to May 14, 2004, but not earlier than March 11, 2003, for service connection for a heart disability, is granted. FINDINGS OF FACT 1. The Veteran submitted a claim for service connection for a heart disability as secondary to his service-connected non-Hodgkin’s lymphoma no earlier than March 11, 2003. 2. The preponderance of the evidence shows the Veteran’s heart disability as secondary to his service-connected non-Hodgkin’s lymphoma and exposure to Agent Orange began no earlier than April 5, 2001. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of March 11, 2003, but no earlier, for service connection for a heart disability have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.310, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from April 1968 to November 1969, including service in Vietnam. The Veteran passed away in March 2005. The Veteran’s spouse is the Appellant. The present claim arises from an appeal of a December 2011 Department of Veterans (VA) regional office (RO) rating decision that reviewed an August 2003 denial of service connection for hypercholesterolemia for the purposes of entitlement to retroactive benefits under the provisions of Nehmer. See Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III); see also August 2003 rating decision (service connection for hypercholesterolemia originally denied). In February 2018 and February 2020, the Board of Veterans’ Appeals (Board) remanded the Appellant’s claim for further development. Importantly, the February 2020 remand recharacterized the Veteran’s claim of service connection for hypercholesterolemia to encompass any heart disability, to include coronary artery disease and congestive heart failure. In August 2020, the Appellant was awarded retroactive benefits under Nehmer for the Veteran’s entitlement to service connection for coronary artery disease with congestive heart failure status post bypass graft associated with non-Hodgkin’s lymphoma and exposure to Agent Orange, effective May 14, 2004. See August 2020 rating decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Board also wishes to apologize to the Appellant for the delays in the full adjudication of her claim. The Earlier Effective Date Claim The Appellant asserts, in substance, that service connection for the Veteran’s heart disability should be effective earlier. See e.g., Notice of Disagreement, September 2012; Statement in Support of Claim, November 2012 (Veteran was treated with coumadin and cardioversion therapies for his arterial fibrillation); VA Form 9, April 2014 (Veteran “died of cancer but would have lived longer if not for the heart attack.”); see also Appellate Brief, February 2021 (Appellant seeking service connection based on the earliest sign that the condition existed). Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For claims prior to March 24, 2105, as is the case here, the term “claim” or “application” may mean a formal or informal communication or action indicating an intent to apply for one or more VA benefits benefit. 38 C.F.R. § 3.155(a). While the laws and regulations governing what is a “claim” or “application” for VA benefits have changed, during the time period covered by this appeal, the term “claim” or “application” meant a formal or informal communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 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 an intent to file a claim for VA benefits). Under Nehmer, entitlement to potential retroactive benefits applies to cases wherein VA received a claim for benefits, or wherein VA denied benefits, on or after September 25, 1985, and before August 31, 2010. See 38 C.F.R. § 3.816(b)(2). If a Nehmer class member is entitled to retroactive benefits for a covered herbicide 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. 38 C.F.R. § 3.816(c). In this case, a review of the record shows the Veteran's original claim of service connection for a heart disability arose on March 11, 2003. See March 2003 Board Transcript (Veteran testified that he had high cholesterol proximately due to his non-Hodgkin’s lymphoma chemotherapy treatment). As a procedural matter, the Board finds that VA reasonably construed the Veteran’s March 2003 hearing testimony as a claim for benefits for a heart disability secondary to non-Hodgkin’s lymphoma treatment for purposes of this appeal. The RO denied the Veteran’s original claim in an August 2003 rating decision that became final. Thus, under Nehmer, the Board finds that for the purpose of this decision the Veteran’s claim was received by VA on March 11, 2003, the date of the Veteran’s Board testimony. As to the date entitlement to his heart disability arose, the Appellant was awarded retroactive benefits under Nehmer for the Veteran’s service connection for coronary artery disease with congestive heart failure associated with non-Hodgkin's lymphoma and exposure to Agent Orange, effective May 14, 2004. See August 2020 rating decision. The RO then found the effective date of the Veteran’s heart disability was the date of the first medical diagnosis of congestive heart failure. See VAMC Beckley dated May 14, 2004 (noting onset of congestive heart failure); see also Medical Opinion provided by Veterans Evaluation Services on April 8, 2020 (opining the Veteran’s heart disability is at least as likely as not (50 percent or greater probability) proximately due to or the result of the Veteran’s service connected non-Hodgkin’s lymphoma and Agent Orange). However, in the context of Nehmer claims, “an effective date should not be assigned mechanically based on the date of diagnosis,” rather “all of the facts should be examined to determine the date” evidence of symptoms for a condition “first manifested.” DeLisio v. Shinseki, 25 Vet. App. 45, 58-59 (2011). In this case, the central question before the Board is whether the evidence demonstrates the Veteran had a heart disability prior to May 14, 2004. For the reasons set forth below, the Board finds the preponderance of the evidence shows the Veteran’s heart disability manifested itself prior to May 14, 2004, but no earlier than April 5, 2001, as a condition secondary to the Veteran’s service-connected non-Hodgkin’s lymphoma and Agent Orange exposure. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A review of the Veteran’s medical history shows his service treatment records (STR’s) do not contain complaints, treatment, or diagnosis for a heart disability. Specifically, the Veteran reported no shortness of breath, no pain or pressure in chest, no palpitation or pounding heart and no high or low blood pressure on his entrance, inservice flight and exit physical examinations. Post-service treatment records show that the Veteran was service connected for non-Hodgkin’s lymphoma as a result of Agent Orange exposure, effective March 2001. Importantly, the evidence shows the Veteran had no significant history of heart problems prior to April 2001. However, medical records from April 2001 show the Veteran entered a VA treatment facility for his scheduled second round of chemotherapy on April 5, 2001 for his service-connected non-Hodgkin’s lymphoma but had a reaction that made his heart rate rise to 190 beats per minute (bpm). Important for this case, the Veteran was subsequently hospitalized until April 12, 2001 for this episode and was diagnosed with new onset atrial fibrillation. See VAMC Richmond ER Note April 6, 2001. Tellingly, one VA clinician in the record noted that the Veteran did not have coronary artery disease but questioned the possibility of congestive heart failure in the treatment notes at this time. See VAMC Richmond Progress Notes from April 2001. VA medical progress notes from April 2001 also document that the Veteran had a small pericardial effusion, he was examined for atrial thrombosis and his newly developed onset of atrial fibrillation was noted as potentially being secondary to his chemotherapy treatment for non-Hodgkin’s lymphoma, which the examiner noted was “cardiotoxic.” Thereafter, the Veteran continued to have complications from his heart disability after the April 2001 onset of atrial fibrillation. Specifically, VA doctors had to continue adjusting the treatment for his non-Hodgkin’s lymphoma in consultation with the VA cardiology department due to his irregular heart rate issues and reaction to medication. See e.g., VAMC Beckley Medical Records dated April 19, 2001 (he is given diltiazem apparently due to atrial fibrillation and he is also on amiodarone which probably maintains him on heart rhythm but due to low blood pressure which is symptomatic, will discontinue diltiazem and make appointment with cardiology); April 25, 2001 (he has hypotension, probably due to volume depletion; sinus tachycardia. Get cardiology consult for atrial fibrillation); May 14, 2004 (impression of new onset atrial fibrillation with rapid ventricular response and left pleural effusion). Further VA treatment records for this period show the Veteran had on and off problems with irregular heart rate, tachycardia and other signs of murmurs and arrhythmia that are consistent with symptoms of a worsening heart disability with onset in April 2001. See e.g., VAMC Buckley dated April 30, 2001 (sinus tachycardia); April 5, 2004 (irregular heartbeat, tachycardia); May 14, 2004 (tachycardia, atrial fibrillation). Moreover, the Veteran’s March 2005 death certificate lists his cause of death as acute cardiorespiratory arrest due to or as a consequence of congestive heart failure, non-Hodgkin’s lymphoma and atrial fibrillation. Thus, the evidence makes clear that the Veteran’s congestive heart failure and his symptoms of atrial fibrillation contributed to the Veteran’s cause of death uniquely and were problems for which the Veteran suffered with since April 2001 and up to the time of his death in March 2005. Notwithstanding the fact that the record shows the Veteran was diagnosed with a heart disability earlier than March 11, 2003, the effective date of an award of compensation on an original claim for benefits must be the date of receipt of the claim, or the date entitlement arose, whichever is later. In this case, the original claim for service connection for a heart disability was received on March 11, 2003 and is the later of the two dates in question. Thus, the Veteran was entitled to service connection for a heart disability no earlier than March 11, 2003, because that is the date an original claim for service-connection for a heart disability was received by VA. Accordingly, a claim of service connection for a heart disability was received by the RO on March 11, 2003, the Board finds that the effective date for service connection for a heart disability can be no earlier than March 11, 2003 because it is the later date as between the date of the original claim and the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.