Citation Nr: 1032977 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 06-09 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for the cause of the Veteran's death. 2. Entitlement to service connection for chronic lymphocytic leukemia to establish eligibility for retroactive benefits. 3. Determination of countable income for death pension. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Motrya Mac, Counsel INTRODUCTION The Veteran had over twenty years of active duty service, beginning in 1964 and ending in April 1985. He died in November 2004. The Appellant was married to the Veteran at the time of his death. This matter is before the Board of Veterans' Appeals (Board) on appeal of adverse determinations, in March 2005, in February 2007, and in June 2007 of Department of Veterans Affairs (VA) Regional Offices (RO). In July 2009, the Board remanded the claims for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In August 2010, the Appellant's representative raised the claim for accrued benefits, citing to a statement in October 2003 by the Veteran, referring to a claim for compensation filed in October 2000, which is referred to the RO for appropriate action. STAY On the claim of service connection for the cause of the Veteran's death, a copy of the Veteran's death certificate shows that coronary artery disease contributed to the cause of the Veteran's death. The Appellant argues that the Veteran served in Vietnam or in Vietnam waters. The record shows that the Veteran was in the Navy and his medals included the Vietnam Service Medal and Republic of Vietnam Campaign Medal. In October 2009, the Secretary of the Department of Veterans Affairs announced the decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease (which includes coronary artery disease), Parkinson's disease, and B cell leukemias. VA is in the process of amending the current regulation to establish presumptive service connection for the new diseases. The amended regulation will take effect on the date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. In November 2009, the Secretary of the Department of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law, but that potentially may be granted based on the planned new presumptions of service connection based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. Exposure to herbicides is presumed for a Veteran who set foot in Vietnam or who was present in the inland waterways of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (U.S. Jan. 21, 2009). And based on the current record, it is not clear whether the Veteran served in Vietnam or in the inland waterways of Vietnam. As the claim of service connection for the cause of the Veteran's death may be affected by the new presumptive disease, ischemic heart disease, the Board must stay action on that matter in accordance with the Secretary's stay. Once the planned final regulations are published, the adjudication of the claim that has been stayed will be resumed. The claim of service connection for chronic lymphocytic leukemia to establish eligibility for retroactive benefits and the determination of countable income for death pension are REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND On the claim of service connection for chronic lymphocytic leukemia, in July 2006, the RO notified the Appellant of the decision of the U.S. District Court for the Northern District of California in Nehmer v. Department of Veterans Affairs, No. C-86-6160 (TEH) which held that the provisions of the Nehmer class action suit applied to disability or death claims based on chronic lymphocytic leukemia, thus entitling those who met the eligibility requirements to claim retroactive benefits. Under 38 C.F.R. § 3.816, a Nehmer class member is a Vietnam veteran who has a covered herbicide disease, which the Nehmer court subsequently expanded to include chronic lymphocytic leukemia, even though by regulation the Secretary of Veterans Affairs had not established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991, Public Law 102-4. The Appellant asserts that the Veteran served in Vietnam and that the Veteran was diagnosed with chronic lymphocytic leukemia during his life. Based on the current record, it is not clear whether the Veteran served in Vietnam or in the inland waterways of Vietnam and whether he had chronic lymphocytic leukemia. And further development under the duty to assist is needed. On the determination of countable income for death pension, the Appellant contends that her daughter's Social Security Administration benefits are not countable income for death pension under the hardship exclusion for countable income under 38 C.F.R. § 3.272(m). To ensure procedural process, the RO must consider in the first instance the hardship exclusion for countable income. In January 2007, except for benefits from the Social Security Administration for her daughter, the Appellant reported that she did not have income from any other source. Under the duty to assist, the Appellant's current financial status needs to be determined. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service personnel records to determine whether the Veteran served in Vietnam or in the inland waterways of Vietnam. If the records cannot be found or further efforts to obtain the records would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 2. Request that the RO in Manila search for any additional files of the Veteran and to document whether or not the Veteran had a claim for VA compensation, filed in 2000, which was pending at the time of his death in 2004. If the documentation cannot be found or further efforts to obtain documentation would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e). 3. Request the records of the Social Security Administration. If the documentation cannot be found or further efforts to obtain documentation would be futile, notify the Appellant in accordance with 38 C.F.R. § 3.159(e) 4. Ask the Appellant to either submit or to authorize VA to obtain on her behalf medical records, pertaining to the Veteran's treatment of chronic lymphocytic leukemia. 5. Ask the Appellant to complete a Financial Status Report (VA Form 20-5655), and provide all sources of income, including income for her or for her daughter from the Social Security Administration. 6. After the above development is completed, adjudicate the claim of service connection for chronic lymphocytic and leukemia and determine countable income for death pension under the hardship exclusion for countable income under 38 C.F.R. § 3.272(m). If any benefit sought remains denied, furnish the Appellant and her representative a supplemental statement of the case and return the case to the Board. 7. If the stay is lifted or if it can be determined that the stay does not apply to the claim, adjudicate the claim of service connection for the cause of the Veteran's death. If the benefit sought remains denied, furnish the Appellant and her representative a supplemental statement of the case and return the case to the Board. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).