Citation Nr: 18160622
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-22 557
DATE:	December 27, 2018
ORDER
An initial rating of 100 percent for coronary artery disease (CAD), status post myocardial infarctions is granted.
An effective date prior to August 31, 2010, for the grant of service connection for coronary artery disease, status post myocardial infarctions is denied.
FINDINGS OF FACT
1. Resolving all reasonable doubt, since August 31, 2010, the Veteran’s CAD, status post myocardial infarctions, is shown to be productive of 3 or less metabolic equivalents (METs) resulting in dyspnea, fatigue, and angina.
2. Ischemic heart disease, to include coronary artery disease, is a covered herbicide disease as of August 31, 2010. 
3. The Veteran’s coronary artery disease was initially diagnosed in February 2005.
4. The claims file reflects that a claim for service connection for ischemic heart disease was received on May 18, 2011; there is no record of an earlier claim that can reasonably be construed as a claim for coronary artery disease or ischemic heart disease.
CONCLUSIONS OF LAW
1. Since August 31, 2010, the criteria for a rating of 100 percent for service-connected CAD, status post myocardial infarctions, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.104, Diagnostic Code 7005 (2017).
2. The criteria for an effective date earlier than August 31, 2010, for an award of service connection for coronary artery disease, have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.114, 3.816, 3.400 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from December 1966 to February 1970. This matter is on appeal from a March 2012 rating decision.
1. An initial rating in excess of 10 percent for coronary artery disease, status post myocardial infarctions
The Veteran asserts that he is entitled to increased ratings for his service-connected CAD, status post myocardial infarctions.
Disability evaluations are determined by comparing the veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The RO has evaluated the Veteran’s service-connected CAD, status post myocardial infarctions, as 10 percent disabling from August 31, 2010 under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is warranted when there is a workload of greater than 7 METs (metabolic equivalent), but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness or syncope or where continuous medication was required. See 38 C.F.R. § 4.104, 7005.
A 30 percent rating is contemplated when there is a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. Id.
A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent to 50 percent. Id. 
A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METS or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id.
One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2).
The Board finds that the criteria for a rating of 100 percent have been met under Diagnostic Code 7005 since August 31, 2010, the date of service connection.
A February 2012 VA examination report showed a workload of greater than seven METs but not greater than ten METs with symptoms of dyspnea, fatigue, angina, dizziness, or syncope. The examiner noted the Veteran could mow his lawn for 30 minutes with the need to rest due to dyspnea. Left ventricular ejection fraction was noted as 60 percent.
An August 2014 letter from a private physician shows that the physician believed the Veteran to fit the criteria for a workload of less than three METs. He had an ejection fraction of 25-30 percent. The physician noted that minimal exertion resulted in severe dyspnea, fatigue, angina, dizziness and near syncope. The physician further noted the Veteran’s medical history included CAD, acute myocardial infarction with ST elevation, hypertension, hyperlipidemia, angioplasty, depression, alcohol and tobacco abuse.
In May 2015, the Veteran underwent a VA examination, which revealed an interview-based workload of 7-10 METs. There was left ventricular dysfunction with an ejection fraction of 55-59 percent. The examiner noted that walking to the mailbox tired the Veteran, but he could manage laundry and dishes because he was in an air-conditioned environment.
An October 2018 letter from a private physician shows that the physician believed the Veteran to fit the criteria for a workload of less than three METs. The physician stated that this opinion took into consideration the Veteran had additional physical limitations due to his chronic obstructive pulmonary disease (COPD), but opined it was much more likely than not the Veteran’s CAD rendered him a total and complete cardiac cripple as evidenced by angina with minimal activity, chest pain and shortness of breath at rest, and ejection fraction at times as low as 25 percent.
Although the various VA examinations and treatment records throughout the appeal period show that the Veteran’s ejection fraction has ranged between 25 and 60 percent, the majority of the evidence shows that his METs levels have had a workload of three METs or less with dyspnea, fatigue, and angina consistent with the criteria for a 100 percent disability rating. 
The VA examiners do not explain how they arrived at the stated METs level. The indication that the Veteran’s METs level was not solely due to his heart condition, or that the low METs levels were not due to ischemia and probably due to COPD, is unclear as a baseline was not provided, and do not provide an explanation. Furthermore, the indication is unaccompanied by a rationale that is sufficient to allow for dissociation of any level of heart impairment due to nonservice-connected factors. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The private opinion noted the Veteran’s METs level solely due to the cardiac condition has been three or less, which is consistent with the criteria for a 100 percent disability rating. This opinion also accounted for the effect to the Veteran’s COPD on the METs level. 
The criteria at 38 C.F.R. § 4.104 are disjunctive, thus all criteria need not be met. See Melson v. Derwinski, 1 Vet. App. 334 (1991). Accordingly, affording the Veteran the benefit of all doubt, the Board finds that the evidence is at least in equipoise, and that the criteria for a 100 percent rating have been met under Diagnostic Code 7005 since August 31, 2010, when service-connection was granted.
2. An effective date prior to August 31, 2010, for the grant of service connection for coronary artery disease, status post myocardial infarctions
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased rating 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.
Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997).
Additionally, VA has promulgated special rules for the 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 agent disease. 
As applicable to this case, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows:
1) If VA denied compensation for the same covered herbicide disease between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose; or 2) if there was a claim for benefits pending before VA on May 3, 1989 or received by VA between May 3, 1989 and the effective date of the applicable liberalizing law, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based, or the date the disability arose, except as otherwise provided in paragraph (c)(3). 38 C.F.R. § 3.816(c)(1)-(2). 
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). 
A “claim” or “application” is defined by VA regulation as “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) (prior to 2015). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits...” and must identify the benefit sought. 38 C.F.R. § 3.155(a) (prior to 2015). VA has amended the regulations to require submissions on standardized claim forms. However, this change does not apply to the Veteran’s appeal.
Review of the file shows that a claim for service connection for ischemic heart disease was received on May 18, 2011. In a March 2012 rating decision, the RO granted service connection for coronary artery disease, effective May 18, 2011. The Veteran appealed, and in a September 2013 rating decision the RO granted an earlier effective date of August 31, 2010. 
The Veteran asserts that he is entitled to an earlier effective date in February 2005, as he was initially diagnosed with coronary artery disease in 2005.
Service treatment records do not reflect a diagnosis of coronary artery disease or ischemic heart disease. 
Private treatment records indicate the Veteran underwent cardiac catheterization with angioplasty to the right posterior descending artery and drug eluding stent placement to the distal right coronary artery. An indication of coronary artery disease was noted.
Review of the claims folder does not reflect any formal or informal claims for service connection for ischemic heart disease, to include coronary artery disease specifically, between the Veteran’s discharge from service and May 18, 2011.
A formal application for service connection for ischemic heart disease was initially received on May 18, 2011. Along with that application, the Veteran indicated that his ischemic heart disease began in February 2005, and that he was treated at Monroe Regional Medical Center in February 2005. 
Following review of the claims folder, the Board finds that the Veteran is not entitled to an earlier effective date for the grant of service connection for coronary artery disease.
The Veteran’s military personnel records showed that he served in the Republic of Vietnam during the Vietnam War era, and therefore, qualifies as a Nehmer class member. He also has a covered herbicide agent disease, as ischemic heart disease, to include coronary artery disease, was added to the list of presumptive Agent Orange diseases in August 31, 2010. See 38 C.F.R. §§ 3.307, 3.309(e), 3.816; see also 75 Fed. Reg. 53202, 53203 (Aug. 31, 2010).
However, the record does not reflect that he was denied compensation for ischemic heart disease, to include CAD, between September 25, 1985 and May 3, 1989. There also is no evidence of a claim for benefits for either ischemic heart disease or coronary artery disease that was pending before VA on May 3, 1989, or received by VA prior to August 2010, the effective date of the liberalizing law. Thus, 38 C.F.R. § 3.816(c)(1)-(2) do not apply.
Despite the Veteran’s current contentions, the evidence of record simply does not show that a claim for service connection for ischemic heart disease, coronary artery disease or any other condition included in the definition of ischemic heart disease was received prior to May 18, 2011. And there is no decision by VA that denied service connection for any form of ischemic heart disease. See 38 C.F.R. § 3.309(e), including Note 2. 
Finally, 38 C.F.R. § 3.816(c)(3) is also not for application, as the record does not reflect that a claim for service connection for ischemic heart disease was received within one year from his separation from service in February 1970. Therefore, the effective date for the grant of service connection for his coronary artery disease must be assigned pursuant to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4).
The liberalizing provisions of Section 3.114 already provided an earlier effective date, as the Veteran’s claim was received first on May 18, 2011 and the RO awarded an earlier effective date based on when the liberalizing law was effective, which was August 31, 2010.
Alternatively, based on Section 3.400, the effective date of an original claim would be the date of the receipt of the claim or the date entitlement arose, whichever is later. A claim for service connection for coronary artery disease is shown to have been received on May 18, 2011. The date of entitlement to service connection arose is in February 2005, based on private treatment records showing a diagnosis of ischemic heart disease. The later of these two dates is May 18, 2011. As such, application of 38 C.F.R. § 3.400 would not provide an earlier effective date. The earliest effective date has already been assigned based on 38 C.F.R. § 3.114.
Based on the evidence of record and the applicable VA regulations, the earliest date allowable for the award of service connection for coronary artery disease is the current effective date of August 31, 2010; the date on which ischemic heart diseases, to include coronary artery disease, was first added as a disease presumptively due to in-service exposure to herbicide agents. See 38 C.F.R. § 3.114.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Kelly A. Gastoukian, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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