11-34 086
11-34 086
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served in Vietnam; presumed exposure to herbicides (Agent Orange). Service: 1947–1955 and 1955–1971.
- VA received claims for cardiac issues starting August 19, 2008 (heart murmur) and later a May 21, 2010 claim for a cardiovascular condition; IHD/CAD added to presumptive list effective August 31, 2010.
- Earliest medical diagnosis of ischemic heart disease/CAD documented August 14, 2012 (cardiac catheterization and stent placement); VA granted presumptive service connection for CAD effective August 14, 2012 (June 2013 decision).
- Veteran experienced a myocardial infarction in August 2015; VA assigned a temporary total (100%) rating for convalescence following MI from August 11, 2015 to November 30, 2015 (later adjusted by Board to Aug 3–Nov 30, 2015).
- Claimant sought (1) an earlier effective date for CAD (back to 2008), (2) an initial rating >30% for CAD (including 100% since 2012), (3) review of the temporary total rating period, and (4) service connection for multiple musculoskeletal, GI, and peripheral vascular conditions (the latter issues were remanded for further development).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effective date for CAD (earlier than Aug 14, 2012) | Veteran contends in-service heart murmur, chest pain, and earlier claims (2008, 2010, 2011) show manifestation and justify effective date back to claim filing (2008) | VA: entitlement arises on date disability is diagnosed; under Nehmer rules and regs, effective date is later of date of claim or date entitlement arose; diagnosis first appears Aug 14, 2012 | Denied — effective date is Aug 14, 2012 (date of diagnosis) |
| Initial rating in excess of 30% for CAD | Veteran argues symptom severity and functional limits warrant higher (up to 100%) rating since 2012 | VA points to METs estimates, ejection fraction, and exam findings showing >7–10 METs and EF >50% for most of period; schedular criteria met for 30% only | Denied — 30% is correct; higher rating not supported except temporary total for MI period |
| Propriety/length of temporary total rating for MI convalescence | Veteran disputed assigned convalescence period length | VA relied on records showing MI in August 2015 and applied DC 7006 (100% during and three months after MI) | Granted for convalescence from Aug 3, 2015 to Nov 30, 2015 (3 months after Aug 3) |
| Service connection for right wrist, bilateral knees, other osteoarthritis, GI disorders, and blood flow restriction/peripheral vascular disease | Veteran asserts these are due to service, herbicide exposure, prolonged sitting, or secondary to service‑connected right foot/CAD | VA/Board: record lacks adequate, rational etiological opinions; development/exams needed | REMANDED — medical opinions/examinations ordered (artery & vein exam plus etiological opinions for musculoskeletal and GI claims) |
Key Cases Cited
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (lay evidence limited in diagnosing complex medical conditions)
- Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.) (VCAA notice unnecessary for downstream rating/effective‑date issues once service connection awarded)
- Thun v. Peake, 22 Vet. App. 111 (Vet. App.) (three-step framework for extra‑schedular referral under 38 C.F.R. § 3.321)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (low threshold for providing VA examination/opinion under duty to assist)
- Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal.) (class action establishing special effective‑date rules for Agent Orange/herbicide presumptives)