Citation Nr: A23006672 Decision Date: 04/05/23 Archive Date: 04/05/23 DOCKET NO. 220707-259080 DATE: April 5, 2023 REMANDED Entitlement to an effective date earlier than November 26, 2010, for the grant of service connection for coronary atherosclerosis and angina pectoris (Nehmer granted) is remanded. Entitlement to an effective date earlier than February 15, 2017, for the grant of special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to September 1970. As an initial matter, it is noted that, in August 2019, the Board remanded the claim of entitlement to an earlier effective date for the grant of service connection for coronary atherosclerosis and angina pectoris. In August 2020, the Agency of Original Jurisdiction (AOJ) issued a Supplemental Statement of the Case (SSOC), regarding this claim. The SSOC advised the Veteran of his appeal rights, including the option to opt-in to the modernized appeal system (i.e., AMA) within 60 days from the date of notification of that SSOC. In response the Veteran timely elected to opt-in to the modernized review system, requesting a Higher-Level Review by the AOJ. A higher-level review rating decision was issued in January 2021, again denying this issue. In January 2021, the Veteran submitted a higher-level review request to the January 2021 rating decision and the AOJ denied this issue in a May 2021 higher level review rating decision. In June 2021, the Veteran submitted another higher-level review request and specifically requested review of both the May 2021 higher level review rating decision (that denied entitlement to an earlier effective date for the grant of service connection for coronary atherosclerosis and angina pectoris) and the July 2020 rating decision that granted SMC based on aid and attendance, effective February 15, 2017. The Veteran indicated that the criteria for SMC based on aid and attendance was met prior to February 15, 2017. In response, the AOJ issued an August 2021 higher level review rating decision denying both claims seeking earlier effective dates. Within one year of the August 2021 higher level review rating decision, the Veteran filed a July 2022 VA Form 10182, notice of disagreement (NOD), and requested the direct review lane. Under the direct review lane, the Board must decide the appeal based on the evidence of record at the time of the prior decision and no additionally submitted evidence may be considered. For the claim seeking entitlement to an earlier effective date for the grant of service connection for coronary atherosclerosis and angina pectoris, the prior decision is the August 2020 SSOC. For the claim seeking entitlement to an earlier effective date for SMC based on aid and attendance, the prior decision is the July 2020 rating decision. In February 2018, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) regarding the claim seeking entitlement to an earlier effective date for the grant of service connection for coronary atherosclerosis and angina pectoris. When the Veteran opted into the AMA, he effectively withdrew his appeal in the legacy system, which rendered the procedural rules associated with that system no longer applicable. As such, under the circumstances of this case, and pursuant to the AMA, the VLJ who conducted the February 2018 Board hearing is not required to participate in the decision. See 38 C.F.R. § 20.706. A transcript of the hearing is, however, of record. 1. Entitlement to an effective date earlier than November 26, 2010, for the grant of service connection for coronary atherosclerosis and angina pectoris (Nehmer granted) is remanded In an attempt to comply with the August 2019 Board remand directives, the AOJ procured an August 2020 VA medical opinion. The examiner, however, failed to consider whether the Veteran's symptomatology noted at the time of his September 1988 claim, to include angina, was attributable to an ischemic heart disease and the examiner did not provide an opinion as to the date of onset of the Veteran's ischemic heart disease. Rather, the examiner's negative opinion appears to hinge entirely on the fact that the Veteran had a normal EKG in 2003 and normal stress test. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As this amounts to a pre-decisional duty to assist error, the Board finds that remand is warranted for a new VA medical opinion consistent with the directives herein. 2. Entitlement to an effective date earlier than February 15, 2017, for the grant of SMC based on the need for aid and attendance is remanded. The issue of entitlement to an earlier effective for date for SMC based on the need for aid and attendance is inextricable intertwined with the earlier effective issue being remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). As such, a determination on this claim should be deferred pending final disposition of the claim of entitlement to an earlier effective date for the grant of service connection for coronary atherosclerosis and angina pectoris. The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to address the onset date of the Veteran's ischemic heart disease. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All findings must be fully reported. a) The examiner should opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's symptoms present at the time of his September 12, 1988 claim were attributable to his later diagnosed ischemic heart disease. b) If not, the examiner should opine as to when it was at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's ischemic heart disease had its onset. In rendering the above opinions, the examiner must specifically consider and discuss the various VA treatment records showing chest pains from 1981 to 2010, VA treatment records indicating that the Veteran had possible angina in September 1988 and history of angina noted in September 1991, and the VA treatment records showing an EKG with nonspecific T wave abnormalities in the inferior leads. The examiner is advised of the VA regulations which provide that ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.