BVA9502826 DOCKET NO. 93-01 149 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than November 23, 1987, for service connection for ischemic heart disease with congestive heart failure, status post coronary artery bypass graft (heart disease). REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from August 1969 to April 1977. The matter on appeal arises following an April 1992 decision by the aforementioned regional office (RO). The veteran expressed his disagreement with that decision in May 1992 and after appropriate appellate development, the case was forwarded to the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran seeks to establish a total rating during the period from 1984 to 1987. Therefore, he contends that rather than an effective date of 1987 for the grant of service connection for heart disease and the assignment of a total rating, the effective dated should be in 1984. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that an effective date earlier than November 23, 1987 for the award of compensation for the veteran's service connected heart disease is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran was treated at Sepulveda VA Medical Center on October 29, 1987 for precordial chest pain with radiation to the jaw and arm and some diaphoresis. 3. On November 5, 1987, the veteran was hospitalized at the Sepulveda VA Medical Center for complaints of substernal chest pain and on November 11, 1987 he was transferred to the Wadsworth VA Medical Center. 4. On November 12, 1987, the veteran underwent a coronary artery bypass graft at the Wadsworth VA Medical Center. 5. In a letter from his representative dated November 19, 1987 and received at the Los Angeles regional office on November 23, 1987, the veteran requested service connection for his heart disorder that he believed was secondary to treatment he previously received for a service connected disorder. 6. In a November 1989 rating action, the veteran was granted service connection for his heart disease, effective from November 23, 1987. CONCLUSION OF LAW An effective date of October 29, 1987 for service connection for heart disease is warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.157 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded in that it is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further development is necessary in order to comply with the provisions of 38 U.S.C.A. § 5107. A review of the record reveals that the veteran was discharged from service in April 1977 after he was diagnosed to have a type of cancer. In a rating action dated in July 1977, he was granted service connection for malignant diffuse histiocytoma, with involvement of abdominal lymph nodes; pulmonary involvement, metastasis and anterior mediastinal involvement, metastasis (cancer). Each of these disabilities were independently rated as 100 percent disabling. The veteran was also awarded entitlement to special monthly compensation on account of being so helpless as to be in need of regular aid and attendance. In October 1983, the veteran underwent a VA examination during which it was noted that his service connected disabilities had been in remission in excess of 5 years. Accordingly, in a rating action dated in November 1983, the RO reduced the veteran's disability rating to 30 percent, effective from February 1984. By a rating action dated in November 1989, the veteran was granted service connection for heart disease as secondary to his service connected cancer. He was assigned a 100 percent schedular rating effective from November 23, 1987. In that same rating his heart disease was assigned a 30 percent rating effective from January 1989. In a May 1990 rating action, which was undertaken after additional records were obtained, the disability evaluation assigned to the veteran's heart disease was increased to 60 percent effective from January 1989. By a rating action dated in April 1992, the RO awarded the veteran a total rating based on his unemployability effective from January 1989. He was assigned a 100 percent schedular rating for his heart disease effective from March 1992. Accordingly, the veteran has had a 100 percent rating from April 1977 to February 1984, a 30 percent rating from February 1984 to November 1987; and a 100 percent rating from November 1987. Following his receipt of the award letter which set forth January 1989 as the effective date for the newly awarded 100 percent rating, the veteran indicated in letters to the RO dated in May 1992, that he sought to obtain a 100 percent rating for that period during which he had not been so rated, i.e., from February 1984 through November 1987. A review of the record between 1984 and 1987 does not reveal that any written claim for service connection for the veteran's heart disease was submitted by or on behalf of the veteran until November 23, 1987. Moreover, in a decision dated in March 1985, the Board affirmed the RO's disability rating for the veteran's cancer at 30 percent and that determination is final. In a letter dated November 19, 1987 and received at the Los Angeles regional office on November 23, 1987, the veteran requested service connection for his heart disease, believing it was secondary to the treatment he received in service for his cancer. As previously set forth, in a November 1989 rating action the veteran was granted service connection for his heart disease and he was assigned a 100 percent disability evaluation rating. The date his letter requesting this benefit was received at the regional office was determined to be the effective date for this award. In view of this, it is apparent that in order to accomplish the result the veteran desires in his current claim, it would be necessary for the Board to find that an earlier effective date for the establishment of service connection for heart disease was warranted. The medical records obtained in connection with the veteran's 1987 claim show that he presented at the Sepulveda VA Medical Center on October 27, 1987 with precordial chest pain with radiation to the jaw and arm and some diaphoresis. He was discharged on October 29 after a myocardial infarction was ruled out. On November 5, 1987, he was admitted to the Sepulveda VA Medical Center with substernal chest pain and on November 11, 1987, he was transferred to the Wadsworth VA Medical Center. On November 12, 1987 a coronary artery bypass graft was performed. As set forth above, the Los Angeles regional office received a letter on November 27, 1987 in which the veteran requested service connection for his heard disability and in November 1989, service connection was granted effective from November 27, 1989. Under applicable criteria, 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 the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Pursuant to 38 C.F.R. § 3.157 (a), a report of examination or hospitalization will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(b)(1) provides in pertinent part that the date of admission to a VA hospital will be accepted as date of claim when a claim specifying the benefit sought is received within 1 year. The evidence in this case shows that the veteran was treated on October 27, 1987 for complaints related to his cardiovascular system. He was hospitalized again on November 5 due to cardiac complaints and from there he was transferred to another VA hospital where a coronary artery bypass graft was performed. Shortly after that a written claim for compensation benefits was submitted from him, which was subsequently granted effective from the date the written claim was received. However, pursuant to the above cited regulation, an informal claim may be considered to exist from the time the veteran was treated for his cardiovascular complaints in October 1989, as it was for this problem that compensation benefits were ultimately established. Accordingly, the date of the veteran's claim for compensation benefits for his heart disease may be considered to be October 27, 1987, rather than November 23, 1987, and as the effective date of the award is the date of claim, the effective date for service connection for heart disease is October 27, 1987. In light of this determination that an earlier effective dated for service connection for the veteran's heart disease is granted, the RO should determine the appropriate disability evaluation for that disorder for the period between October 27, 1987 and November 23, 1987. ORDER Entitlement to an earlier effective date of October 27, 1987 for service connection for the veteran's heart disease is granted. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.