Citation Nr: 1140940 Decision Date: 11/03/11 Archive Date: 11/16/11 DOCKET NO. 05-35 720A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to retroactive benefits for diabetes mellitus under 38 C.F.R. § 3.816. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1946 to April 1947, and from June 1951 to April 1970. He died in March 1998; the appellant is his son. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that this claim was denied by the Board in a decision dated in June 2008. The appellant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2010, the Court vacated the Board's June 2008 decision and remanded this matter to the Board for action consistent with the Order. Subsequent to the certification of the appeal, the Board received additional evidence that has not been considered by the RO. However, the evidence was accompanied by a written waiver of RO consideration of the evidence, and thus the Board will consider it in making a decision on the merits of the case. See 38 C.F.R. § 20.1304(c) (2010). Although the issue of entitlement to accrued benefits has also been developed for appellate consideration, it is rendered moot as a result of the Board's favorable decision on the claim for retroactive benefits under 38 C.F.R. § 3.816. FINDINGS OF FACT 1. A claim for service connection for type II, diabetes mellitus was received by VA on September 13, 1985, and was pending before VA on May 3, 1989. 2. The appellant is a Nehmer class member as a surviving child of the deceased Veteran, who served in Vietnam and died from a covered herbicide disease. CONCLUSION OF LAW The appellant is entitled to retroactive benefits for type II, diabetes mellitus. 38 C.F.R. § 3.816 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has determined that the evidence currently of record is sufficient to establish entitlement to retroactive benefits for diabetes mellitus under 38 C.F.R. § 3.816. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010). Legal Criteria Nehmer Provisions A Nehmer class member means a Vietnam veteran who has a covered herbicide disease; or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. Covered herbicide diseases include Type II Diabetes (Also known as type II diabetes mellitus or adult-onset diabetes). 38 C.F.R. § 3.816 (b)(1). If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and if VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except where the claim was received within one year from the date of the class member's separation from service. 38 C.F.R. § 3.816 (c)(1). A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. 38 C.F.R. § 3.816 (c)(1). If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered 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 as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered disease if: (i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816 (c)(2). If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from service. 38 C.F.R. § 3.816 (c)(3). If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 38 C.F.R. § 3.816 (c)(4). If the requirements specified above are satisfied, the effective date shall be assigned without regard to statutory and regulatory provisions prohibiting payment for periods prior to the effective date of the statute or regulation establishing a presumption of service connection for a covered herbicide disease. 38 C.F.R. § 3.816 (e)(1). If a Nehmer class member entitled to retroactive benefits dies prior to receiving payment of any such benefits, VA shall pay such unpaid retroactive benefits to the first individual or entity listed below that is in existence at the time of payment: (i) The class member's spouse, regardless of current marital status. (ii) The class member's child(ren), regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division). 38 C.F.R. § 3.816 (f)(1). Statutory and regulatory provisions limiting payment of accrued benefits to amounts due and unpaid for a period not to exceed 2 years do not apply to payments authorized under 38 C.F.R. § 3.816. Likewise, provisions requiring survivors to file claims for accrued benefits also do not apply to payments under 38 C.F.R. § 3.816. When a Nehmer class member dies prior to receiving retroactive payments under this section, VA will pay the amount to an identified payee in accordance with 38 C.F.R. § 3.816 (f)(1) without requiring an application from the payee. 38 C.F.R. § 3.816 (f)(2). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The appellant is seeking retroactive benefits based on his contention that the Veteran filed a claim of entitlement to service connection for diabetes mellitus due to Agent Orange exposure in 1985 (now service connected as the cause of death), that the claim was denied, and that the Court's subsequent holding in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989) (Nehmer I) invalidated that denial, leaving the claim still pending at the time of the Veteran's death. Pursuant to the September 2010 Order, the Board finds that the claim the Veteran submitted on November 13, 1985, can reasonably be construed as a claim (formal or informal, express or implied) of entitlement to service connection for diabetes. Moreover, although the RO did not adjudicate the issue of entitlement to service connection for diabetes in the December 1985 rating decision, the diagnosis of diabetes shown in the private clinical resume dated in September 1985 should have been "coded" in the December 1985 rating decision. The RO did not adjudicate the claim so it remained pending before VA on May 3, 1989. The diabetes diagnosed at that time was subsequently determined by VA to be type II, diabetes mellitus. Accordingly, it is a covered disease and the appellant is entitled to retroactive benefits from the date of receipt of the claim, November 13, 1985. ORDER Entitlement to retroactive benefits from November 13, 1985, for diabetes mellitus under 38 C.F.R. § 3.816 is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs