Case 25005162

L. ANDERSEN · 2025 · Case ID: 25005162

DENIED

Summary

The veteran, who served from October 1950 to May 1977, died in August 2013. This case concerns the effective date for service connection for coronary artery disease (CAD) with cardiomyopathy. The veteran's initial claim for a heart murmur and chest pain in 1977 was denied by the Board in 1978, with no clear and unmistakable error (CUE) alleged in that decision. The Board vacated its May 2021 decision due to a due process error, as the veteran's son had already been recognized as a substitute appellant by the Court of Appeals for Veterans Claims. The primary issue is whether an effective date prior to December 4, 2011, is warranted for the grant of service connection for CAD with cardiomyopathy. While CAD was diagnosed in 2002, and ischemic heart disease became a presumptive herbicide-related disease in August 2010, the veteran's first claim to reopen the heart disability issue was received in December 2012. The Board found that the veteran's in-service complaints were acute and transitory, and there was no post-service chronic disability related to his heart condition at the time of the 1978 decision. Additional service records received after 1978 were not considered relevant as they did not establish a post-service diagnosis. Therefore, the Board denied an effective date prior to December 4, 2011, as the claim was not filed within the applicable timeframes under Nehmer or liberalizing law provisions.

Rationale

Service connection for CAD with cardiomyopathy was granted.; The Board found the Veteran's in-service complaints were acute and transitory.; No post-service chronic disability related to heart condition was found at time of 1978 decision.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-40 782A

Full Decision Text

Citation Nr: 25005162
Decision Date: 04/16/25 Archive Date: 04/16/25

DOCKET NO. 16-40 782A
DATE: April 16, 2025

ORDER

The May 24, 2021, decision of the Board of Veterans' Appeals (Board) is vacated.

Entitlement to an effective date prior to December 4, 2011, for the grant of service connection for coronary artery disease (CAD) with cardiomyopathy is denied.

FINDINGS OF FACT

1. The Board's May 24, 2021, decision denied the Veteran due process of law.

2. An unappealed September 1978 Board decision denied the Veteran service connection for a heart disability; clear and unmistakable error (CUE) in that decision has not been alleged.

3. Service department records added to the claims file after the September 1978 Board decision are not "relevant" and do not warrant reconsideration of the previously denied claim.

4. After the September 1978 Board decision, the first communication from the Veteran evidencing an intent to reopen a claim of service connection for a heart disability was received on December 5, 2012.

5. The Veteran was not denied service connection for a heart disability between September 25, 1985, and May 3, 1989, and did not have a claim of service connection for a heart disability pending between May 3, 1989, and August 31, 2010 (when ischemic heart disease was added to the list of diseases warranting presumptive service connection based on exposure to herbicide agents).

CONCLUSIONS OF LAW

1. The criteria for vacatur of the Board decision dated May 24, 2021, have been met. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.904, 20.1100.

2. An effective date prior to December 4, 2011, for the award of service connection for CAD with cardiomyopathy is not warranted. 38 U.S.C. §§ 5101, 5107, 5109A, 5110, 7104; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.114, 3.151, 3.155, 3.400, 3.156, 3.816.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1950 to May 1977. He died in August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reconsidered a March 2014 rating decision. The Veteran's then surviving spouse was recognized as the Appellant. The issue on appeal was then denied by the Board in March 2018. The Veteran's spouse died in November 2018.

The Veteran's son then appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2019, the Court issued an Order recognizing the Veteran's son as a substitute Appellant. In August 2020, the Court granted a Joint Motion for Remand (JMR), vacated the March 2018 Board decision, and remanded the issue to the Board for development consistent with the JMR. The Board remanded this appeal in May 2021.

Vacatur of the May 2021 Board Decision

The Board may vacate an appellate decision at any time upon request of the Veteran or his or her representative, or on the Board's own motion, when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000.

In a May 24, 2021, decision, the Board remanded the issue of entitlement to an effective date prior to December 4, 2011, for the grant of service connection for CAD with cardiomyopathy. The Board directed the RO to provide proper notice and to determine the eligibility of the Veteran's son for substitution in this appeal.

Importantly, in October 2019, prior to the issuance of the Board remand, the Court issued an Order recognizing the Veteran's son as a substitute Appellant. As such, the Appellant was denied due process of law, necessitating that the Board's decision on this issue be vacated. Therefore, the May 24, 2021, Board decision is vacated.

Effective Date

Entitlement to an effective
the Board remanded the issue of entitlement to an effective date prior to December 4, 2011, for the grant of service connection for CAD with cardiomyopathy. The Board directed the RO to provide proper notice and to determine the eligibility of the Veteran's son for substitution in this appeal.

Effective Date

Entitlement to an effective date prior to December 4, 2011, for the grant of service connection for CAD with cardiomyopathy.

The Veteran filed a claim for service connection for a heart murmur and a disability manifested by chest pain in June 1977. A September 1977 rating decision denied service connection for a heart murmur and disability manifested by chest pain. He appealed the decision in November 1977, and a September 1978 Board decision denied his appeal.

Private treatment records show CAD was diagnosed as early as 2002.

Ischemic heart disease (to include CAD) was added to the list of presumptive herbicide agent-related diseases under 38 C.F.R. § 3.309(e), effective

August 31, 2010. See 75 Fed. Reg. 53,702 (August 31, 2010).

The Veteran filed a claim for service connection for a heart disability on

December 5, 2012. [The Board notes the AOJ appears to have mistakenly identified the receipt date as December 4, 2012.] He died in August 2013.

The March 2014 rating decision, in pertinent part, granted service connection for CAD with cardiomyopathy, rated 100 percent, effective December 4, 2012.

In the April 2014 notice of disagreement, the Veteran's spouse contended the Veteran was entitled to an effective date in 1977 for the grant of service connection for CAD with cardiomyopathy because that is when he first filed a claim for service connection for a heart disability. She reported that he had heart surgery in February 2002 and contended an earlier effective date was warranted under Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002).

In a February 2015 statement, the Veteran's spouse reported that VA treatment providers performed the 2002 heart surgery and asserted VA continually found the Veteran was not exposed to herbicide agents in Vietnam prior to the grant of service connection for CAD with cardiomyopathy.

A December 2015 rating decision found the March 2014 rating decision was based on clear and unmistakable error and assigned December 4, 2011, as the effective date of service connection for CAD with cardiomyopathy.

In February 2016, the Veteran's spouse submitted a copy of the Veteran's

November 1977 notice of disagreement and contended it showed service connection was warranted from the date of the original claim for service connection for a heart disability.

In an August 2016 substantive appeal, the Veteran's spouse again contended the Veteran was entitled to an effective date in June 1977 for the grant of service connection for CAD with cardiomyopathy because that is when he first filed a claim for service connection for a heart disability. She noted he was not a medical professional and did not know which specific heart disability he had. She also reported that the original claim was denied because a heart murmur was not found on VA examination, but that his service treatment records show a heart murmur was assessed in June 1966, suggesting there may have been an underlying heart problem.

In an August 2017 statement, the Appellant reported the Veteran was discouraged from filing a claim of service connection for ischemic heart disease in 2002 because it was not shown he served in Vietnam.

Legal Criteria

Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Legal Criteria

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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).

Any communication or action indicating an intent to apply for one or more benefits under the 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.

An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999).

If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R.

§ 3.114(a)(1). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3).

In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III).

In pertinent part, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide disease or a surviving spouse of a deceased Vietnam Veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). Effective August 31, 2010, ischemic heart disease (including coronary artery disease) was included as a presumptive herbicide-related disease under 38 C.F.R. § 3.309 (e).

The record reflects that the Veteran served in the Republic of Vietnam and died from CAD with cardiomyopathy. Accordingly, the Veteran was 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; or if there was a claim for such benefit pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c). Under 38 C.F.R. § 3.816(c)(1), if the class member's claim was received between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the 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, except if the claim was received within one year from the date of the class member's separation from service, in which case the effective date shall be the first day following the date of the class member's separation from service. See 38 C.F.R. § 3.816(c)(2), (3).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156(c), 20.1000(b). By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014).

The pertinent regulation 38 C.F.R. § 3.156 (c) identifies "relevant" service department records as service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. 38 C.F.R. § 3.156 (c)(1)(i). Thus, the mere receipt of additional service department records is not enough to trigger reconsideration under § 3.156(c); the records must be "relevant." To be "relevant" for purposes of reconsideration under 38 C.F.R.

§ 3.156 (c)(1), the new service record must address a factual issue that was dispositive against the Veteran in the prior VA adjudication - i.e., speak to an element in dispute, and therefore affect the outcome of the case. Kisor v. McDonough (Kisor IV), 995 F.3d 1347 (Fed. Cir. 2021). That is, to be considered relevant, the additional record at issue must speak, directly or indirectly, to the basis for VA's prior denial.

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. §§ 3.102, 4.3.

Analysis

The September 1978 Board decision is final based on the evidence of record at the time of issuance and is not subject to revision in the absence of clear and unmistakable error in the decision. 38 U.S.C. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). The Appellant has not filed a motion alleging CUE in the September 1978 Board decision.

The Board has also considered whether the September 1978 Board decision should be reconsidered under 38 C.F.R. § 3.156(c)(1), based on additional official service department records received and associated with the claims file after the September 1978 Board decision. The August 2020 JMR noted that "the Board failed to adequately explain whether reconsideration of the Veteran's 1977 claim for service connection for a heart murmur and disability manifested by chest pain was warranted under 38 C.F.R. § 3.156(c)(1)." Specifically, the parties agreed that the
a final decision). The Appellant has not filed a motion alleging CUE in the September 1978 Board decision.

The Board has also considered whether the September 1978 Board decision should be reconsidered under 38 C.F.R. § 3.156(c)(1), based on additional official service department records received and associated with the claims file after the September 1978 Board decision. The August 2020 JMR noted that "the Board failed to adequately explain whether reconsideration of the Veteran's 1977 claim for service connection for a heart murmur and disability manifested by chest pain was warranted under 38 C.F.R. § 3.156(c)(1)." Specifically, the parties agreed that the March 2018 Board decision did not address "what service records were before it when it issued the September 1978 decision and whether additional relevant official service department records were received and associated with the claims file after its September 1978 decision."

The September 1978 Board decision noted that the Veteran's entrance examination was not available. However, the Board stated that it reviewed "service medical records pertaining to the Veteran's approximately 27 years of military service." Regarding the Veteran's claim for entitlement to service connection for a heart murmur or a disability manifested by chest pains, including pleurisy, the Board stated that the March 1977 retirement exam noted that the Veteran's heart was normal. The Board discussed the evidence of record, to include a November 1964 complaint of chest pain, where it was clinically recorded that the Veteran had "pleurisy a few years ago." An impression of questionable hiatus with esophagitis was noted. The Board further discussed a December 1964 report of occasional left chest pain with "gas" in the stomach; June 1966 and July 1966 findings of functional systolic heart murmur; a March 1970 complaint of chest pain, diagnosed as pectoralis muscle strain; and a May 1975 complaint of chest pain, diagnosed as upper and lower respiratory infection. The Board noted that no heart murmur was found during the Veteran's VA examination, and that a chest x-ray showed fibronodular lesions attributed to an old healed granulomatous disease.

Ultimately, the Board found that the Veteran's in-service chest complaints were acute and transitory in nature, and that there was no diagnosis of a post-service chronic disability related to his complaints of chest pain.

Consequently, to be considered relevant and warrant reconsideration of the 1977 claim, any service records received after the 1978 Board decision must be relevant to the current diagnosis element that was dispositive against the Veteran in the September 1978 Board decision and, in that way, bear on the outcome of the case. Kisor, 995 F.3d at 1322.

The Board notes that service department records were associated with the Veteran's file in December 2013 and August 2016. Regarding service treatment records associated with the file in August 2016, the Board finds no basis for concluding that these records were not before the Board at the time of its September 1978 decision, as the September 1978 Board decision specifically accounted for the Veteran's missing entrance examination and provided a detailed review of 27 years of service treatment records. To the extent that the entrance examination is relevant to the claim, that examination has not been associated with the record to date. These records are not relevant, as they do not speak to the post-service, current diagnosis element.

Regarding personnel records associated with the record, assuming that these records were not before the Board at the time of the September 1978 Board decision, the Board finds that these records are not relevant, as the personnel records do not address a factual issue that was dispositive against the Veteran in the September 1978 Board decision. As discussed, the basis of the denial of the Veteran's claim in the September 1978 Board decision was that the Veteran did not have a current disability related to his heart murmur and chest pains. The service personnel records associated with the claims file in December 2013 and August 2016 are not relevant to the Board's finding that the Veteran had no current heart condition.

Service records associated with the claims file in December 2013 and August 2016 were not related to the basis of the denial of service connection for a heart condition. They do not address the current diagnosis element; in fact, the evidence of record indicates the Veteran was not diagnosed with a post-service heart disability until 2002.

The Board acknowledges the Appellant's arguments that an earlier effective date is warranted because VA did not determine that the Veteran was exposed to herbicides until the December 2015 rating decision. Additionally, it has been asserted that if the complete service records had been associated with the file at the time of the September 1978 Board decision, service connection would have been granted at that time. Importantly, however, the 1978 Board decision did not deny the Veteran's claim because there was no evidence of exposure to herbicides. Instead, the Veteran's claim was denied because there was no post-service, current diagnosis of a heart disability. The Veteran's in-service complaints were deemed to be acute and transitory and there was no post-service chronic, current heart disability. The additional service records added after the 1978 Board decision do not show the Veteran had a post-service medical diagnosis of a heart disability. As such, these records are not "relevant" as required by 3.156(c). Therefore, the Board finds that reconsideration of the 1977 claim under 38 C.F.R. § 3.156(c) is not warranted. As previously noted, no CUE in the prior Board decision has been asserted. Therefore, the September 1978 Board decision is final and is a legal bar to an effective date prior to the date of that decision for the grant of service connection for a heart disability.

As indicated above, the effective date of an award of service connection is based on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde, 12 Vet. App. at 382. Accordingly, the critical question remaining in this matter is whether the Veteran filed a claim seeking to reopen the claim of service connection for a heart disability between the final September 1978 Board decision and December 4, 2011.

A close review of the record found that the first communication from the Veteran to VA seeking to reopen the claim of service connection for a heart disability was received December 5, 2012. The Board acknowledges that CAD was diagnosed as early as 2002, but the Veteran is not shown to have filed a formal or informal application for service connection for a heart disability between September 1978 and December 5, 2012. The Appellant asserts that VA continually found that the Veteran was not exposed to herbicide agents in service and was discouraged from filing a claim for service connection for a heart disability prior to December 2012, but nothing in the record reflects that the Veteran attempted to file a claim for service connection for a heart disability between when CAD was diagnosed and December 2012 or that VA made any findings regarding his exposure to herbicide agents in service prior to developing the December 2012 claim. There is no indication in the file that the Veteran was discouraged from filing a claim when he was initially diagnosed (in 2002). Furthermore, the Board notes that ischemic heart disease was not added to the presumptive list of diseases associated with exposure herbicide agent until August 2010 (presumptive service connection for such disease was not available in 2002).

As service connection for CAD was granted pursuant to a liberalizing issue,

38 C.F.R. § 3.114 is for application, and the December 2015 rating decision ultimately assigned December 4, 2011, as the effective date for service connection for CAD because the Veteran's claim was received more than one year after the effective date of the liberalizing law (August 31, 2010). (An effective date prior to December 4, 2011, is not permitted under 38 C.F.R. § 3.114(a)(3) because a claim was not received within one year of when the liberalizing law took effect in

August 2010.)

For similar reasons, an effective date prior to December 4, 2011, is not permitted under Nehmer. The Veteran was not denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989 (the Board denial was earlier, in 1978), and a claim for such benefit was not pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law (as the Veteran did not refile a claim seeking service connection until December 2012. See 38 C.F.R. § 3.816(c). The Board notes that while his initial claim for service connection for a heart disability was received within a year from the date of his separation from service, such claim was denied by the final September 1978 Board decision based on no current diagnosis, and was, therefore, not a pending claim. See 38 C.F.R. § 3.816(c)(2), (3). As noted, the September 1978 final Board decision is a legal bar to effective an effective date prior to the date of that decision for the grant of service connection for a heart disability.

The Board is sympathetic to the Appellant's situation and recognizes the unfortunate circumstances of this case, but is bound by governing law and regulations, and has no authority to awards benefits not authorized by governing law. Because the Veteran is not shown to have filed a formal or informal application for service connection for a heart disability between September 1978 and December 2011, VA is precluded from granting an effective date for the grant of service connection for the CAD prior to December 4, 2011. As the RO has already assigned the earliest possible effective date under governing law given the undisputed dispositive facts in this case, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

(Continued on the next page)

Considering the foregoing, the Board finds that an effective date prior to

December 4, 2011, for the grant of service connection for CAD with cardiomyopathy is not warranted, and the appeal is denied.

L. Andersen

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Bynum, Tamara L.

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.

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