Citation Nr: A25035557 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 211207-202687 DATE: April 17, 2025 ORDER An effective date earlier than May 21, 2018, for the grant of service connection for coronary artery disease with atherosclerotic cardiovascular disease and acute myocardial infarction (CAD), is denied. Entitlement to a 100 percent disability rating for CAD from September 17, 2018, to December 16, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation (SMC) based on statutory housebound status from September 17, 2018, to December 16, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial rating greater than 30 percent for CAD from May 21, 2018, to September 16, 2018, and from December 17, 2018, is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. An effective date earlier than March 8, 2020, for the grant of basic eligibility for Dependents' Educational Assistance (DEA) is remanded. FINDINGS OF FACT 1. VA received the Veteran's intent to file a claim for compensation on May 21, 2018; on October 24, 2018, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking service connection for the first time for a heart condition. 2. The Veteran was admitted to a hospital and underwent coronary bypass surgery on September 17, 2018. 3. From September 17, 2018, to December 16, 2018, the Veteran is in receipt of a 100 percent disability rating for his service-connected CAD and additional service-connected disabilities independently rated at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, to warrant SMC at the housebound rate. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 21, 2018, for the grant of service connection for CAD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 3.816. 2. The criteria for entitlement to a 100 percent rating for CAD from September 17, 2018, to December 16, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.31, 4.104, Diagnostic Codes (Code) 7017. 3. The criteria for entitlement to SMC based on housebound status from September 17, 2018, to December 16, 2018, are met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to June 1970 and from July 1970 to February 1995. The Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) thanks the Veteran for his many years of service to our country. In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the June 2019 rating decision which denied service connection for arteriosclerotic sclerosis, acute myocardial infarction, and coronary artery disease with bypass. A September 2020 rating decision identified a duty to assist error during the HLR, and transferred the appeal to the supplemental claim lane for additional development. Thereafter, a December 2020 rating decision, issued on December 11, 2020, granted service connection for CAD and assigned a 30 percent rating from May 21, 2018, the date of receipt of the Veteran's intent to file. That rating also assigned an effective date of March 8, 2020, for DEA benefits. In the December 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket and expressed his disagreement with the evaluation and effective date for CAD and the effective date for the award of DEA. Therefore, the Board may only consider the evidence of record at the time of the December 11, 2020, notice of the decision on appeal as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. Further, evidence and argument received by the Board during the evidence window following receipt of the VA Form 10182 asserts that the Veteran is unable to maintain substantial gainful employment as a result of his service-connected disabilities since at least May 21, 2018. See March 2022 Brief in Support of Veteran's Claim(s) and February 2022 statement from MB, M.D. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the US Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. As such, above the appeal caption includes the issue of whether a TDIU rating is warranted. As to the claim for an effective date prior to May 21, 2018, for the grant of service connection for CAD, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) within a year of this decision and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims for a higher initial rating for CAD, TDIU and an earlier effective date for the award of DEA, any evidence the Board could not consider will be considered by the original jurisdiction (AOJ) in the adjudication of these claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to an effective date prior to May 21, 2018, for the grant of service connection for CAD is denied. The Veteran seeks an earlier effective date for the grant of service connection for CAD. However, neither the Veteran nor his attorney have presented any argument or evidence as to why an earlier effective date should be granted. The effective date of an evaluation and award of compensation based on an initial claim or supplemental 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. The effective date of an award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id. However, VA has promulgated special rules for effective dates for the award of presumptive service connection based on exposure to herbicide agents, 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). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816. 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; or if there was a claim for benefits pending before or received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(2). Ischemic heart disease, which includes coronary artery disease and myocardial infarction, was added to the list of diseases presumed to be caused by herbicide agents effective August 31, 2010, and therefore the date of the liberalizing law in this case is August 31, 2010. See 75 Fed. Reg. 53202 (August 31, 2010). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). On October 24, 2018, within one year of receipt of the Veteran's May 21, 2018, intent to file, VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran seeking service connection for a heart condition presumptively related to Agent Orange. The record does not show any formal or informal claim for service connection for a heart disorder prior to this date, and the Veteran does not assert otherwise. A June 2019 rating decision denied service connection for arteriosclerotic sclerosis, acute myocardial infarction, and coronary artery disease with bypass. In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level-Review and requested review of the June 2019 rating decision. A September 2020 rating decision identified a duty to assist error. After conducting additional development, the AOJ awarded service connection for CAD in a December 2020 rating decision and assigned an effective date of May 21, 2018, the date of receipt of the Veteran's intent to file. In the December 2020 rating decision, the AOJ conceded exposure to herbicides based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23 and granted service connection for CAD based on this presumed exposure to herbicide agents. As such, the Veteran is a Nehmer class member. However, the Veteran was not denied compensation for ischemic heart disease, including CAD, or any other heart disorder between September 25, 1985, and May 3, 1989, nor was such a claim pending before VA on May 3, 1989, or received by VA between May 3, 1989, and August 31, 2010, (the effective date of the statute or regulation establishing a presumption of service connection for the ischemic heart disease). Therefore, the provisions under Nehmer and 38 C.F.R. § 3.816 are not applicable. Instead, the Veteran's initial claim for service connection for a heart condition was received by VA on October 24, 2018. The Board emphasizes that the Veteran does not assert, and the evidence does not otherwise reflect that, prior to his May 21, 2018, intent to file, he communicated an intent to file a claim for service connection for a heart disorder, filed a claim that had been previously denied, or filed an informal claim for such a disorder prior to that date. In this regard, review of the record shows VA received numerous VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran prior to October 2018; however, these applications were filed in connection with unrelated claims and cannot be reasonably construed as including a claim of entitlement to service connection for a heart disorder. To the extent the Veteran indicates that he is entitled to an effective date before May 21, 2018, because he was diagnosed with a heart condition prior to that date, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that an intent to file claim or the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377 (1999). Thus, although a heart disorder may have bene shown prior to May 21, 2018, that cannot serve as a basis for awarding an earlier effective date and the date of claim for compensation controls. See March 2016 VA heart conditions examination report showing the Veteran reported no heart symptoms and electrocardiogram performed on the date of examination was abnormal, showing frequent supraventricular premature complexes in a pattern of bigeminy. Notably, at the time of this examination, the Veteran had not claimed service connection for a heart disability; the examination was conducted in connection with other claims. As such, there is no legal basis to establish an earlier effective date and the Veteran is already in receipt of the earliest effective date possible. Accordingly, entitlement to an effective date prior to May 21, 2018, for the award of service connection for CAD is denied. 2. Entitlement to a 100 percent disability rating for CAD from September 17, 2018, to December 16, 2018, is granted. Disability evaluations are determined by the application of the VA Schedule for Ratings Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board will consider the entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran contends that his service-connected CAD warrants a higher rating than that which is currently assigned. See March 2022 Brief in Support of Veterans Claim(s) and attached statements from the Veteran and his spouse. On September 17, 2018, the Veteran was admitted to the Methodist Stone Oak Hospital to undergo coronary artery bypass graft (CABG) surgery, which was performed the same day. See September 17, 2018, Operative Report. Pursuant to Code 7017, a 100 percent evaluation is warranted for 3 months following hospital admission for coronary bypass surgery. In light of the foregoing, the Board awards a 100 percent disability rating in keeping with the requirement in Code 7017 that a Veteran be granted a 100 percent disability rating for three months following hospital admission for surgery. Accordingly, entitlement to a rating of 100 percent for CAD from September 17, 2018, to December 16, 2018, is granted. ? 3. Entitlement to SMC based on statutory housebound status from September 17, 2018, to December 16, 2018, is granted. Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In this case, the criteria for an award of SMC based on housebound have been met for the period from September 17, 2018, to December 16, 2018. Prior to the grant of service connection for CAD effective May 21, 2018, the Veteran had a combined rating of 90 percent for service-connected prostate cancer; bilateral pes planus; diabetes mellitus; diabetic peripheral neuropathy of the bilateral upper and lower extremities; diabetes mellitus with hypertension, erectile dysfunction and onychomycosis; status post fracture of the right 5th metacarpal; hemorrhoids; left eyebrow excision scar; status post pilonidal cystectomy scar; and residual prostatectomy scar. In light of the Board's grant in this decision of a 100 percent rating for his service-connected CAD for the period from September 17, 2018, to December 16, 2018, the Veteran now has a single service-connected disability rated at 100 percent and additional service-connected disabilities independently ratable at 60 percent or more for that 3-month time period. The Board concludes, therefore, that the facts of the Veteran's claim satisfied the schedular requirements for SMC housebound from September 17, 2018, to December 16, 2018. Accordingly, entitlement to SMC based on housebound status is granted for this period. REASONS FOR REMAND 1. Entitlement to an initial rating greater than 30 percent for CAD from May 21, 2018, to September 16, 2018, and from December 17, 2018 is remanded. 2. Entitlement to a TDIU is remanded. 3. Entitlement to an effective date earlier than March 8, 2020, for the grant of DEA is remanded. The Veteran seeks an increased initial rating greater than 30 percent for his service-connected CAD. The appeal period is from May 21, 2018, the effective date of service connection. The Board finds a pre-decisional duty to assist error exists as to this claim, as prior to the December 2020 rating decision on appeal, additional outstanding potentially relevant private medical records were identified by the record. Specifically, review of the record shows the Veteran has been treated by a private cardiologist, R.S. Kiesz, M.D., (Dr. K.) since he initially sought treatment for complaints of shortness of breath and lower extremity swelling in August 2018. The most recent treatment records obtained from Dr. K. are dated in May 2019; however, subsequent VA treatment records show the Veteran has continued to receive cardiology care by a non-VA provider and a September 2020 VA treatment report notes PVCs (premature ventricular contraction) were shown on a sleep study during the past year and the Veteran complained of SOB (shortness of breath) which had become increasingly worse during the past year. It is noted the Veteran had talked to his non-VA cardiologist about these symptoms. These records also show the Veteran reported his non-VA cardiologist had changed his medications. When reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the claimant in attempting to obtain them. Therefore, due to this pre-decisional duty to assist error, remand is required to allow VA to request updated records from the Veteran's cardiologist as these records are potentially relevant to the Veteran's increased initial rating claim. The Veteran may alternately submit these records to VA. The issues of entitlement to a TDIU rating and an earlier effective date for DEA are inextricably intertwined with the issue of entitlement to an initial increased rating for CAD being remanded and must also be remanded. The Board also advises that, at this time, it intimates no opinion as to the credibility or probative value of any lay statements in relation to the Veteran's claims and defers any credibility determinations until final adjudication of these claims. The matters are REMANDED for the following action: After obtaining any necessary authorization from the Veteran (and advising him that, alternately, he can provide the requested records himself), please obtain and associate with the Veteran's claims file records of treatment provided by his non-VA cardiologist, R.S. Kiesz, M.D., since May 2019. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hughes, Kshama 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.