Citation Nr: 1747710	
Decision Date: 10/25/17    Archive Date: 11/01/17

DOCKET NO.  14-03 328	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD), for purposes of entitlement to retroactive benefits. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Matta, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1968 to December 1971, with service in Vietnam.  He died in April 2010.  The appellant is the Veteran's surviving spouse.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO); the case is now before the Nashville, Tennessee RO.

To clarify the issue on appeal, the case arose when the RO undertook a special review of the file in accordance with the Nehmer line of cases to determine whether retroactive benefits were warranted based on the additions, effective August 2010, of ischemic heart disease (IHD), Parkinson's disease, and B-Cell/Hairy Cell Leukemia to the list of diseases presumed to be caused by exposure to an herbicide agent, such as Agent Orange, under 38 C.F.R. § 3.309(e).  See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).  

The January 2012 rating decision listed the issue of entitlement to retroactive benefits for service connection for hypertensive cardiovascular disease with enlargement of the heart, as the Veteran had filed and been denied the latter benefits in December 2002 and August 2006 rating decisions, prior to his death.  In its decision, the RO determined that entitlement to retroactive benefits was not established.  The appellant perfected an appeal of this decision to the Board.





FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era.

2.  The Veteran had a diagnosis of arteriosclerotic cardiovascular disease, which is a synonym of ischemic heart disease.

3.  The Veteran was a Nehmer class member entitled to retroactive benefits.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for ischemic heart disease for the purpose of retroactive benefits under Nehmer v. United States Department of Veterans Affair, are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.816 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits and applies to the instant claim.  Inasmuch as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA since any notice defect or duty to assist omission is harmless.  

The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents coincident with his service there.  See 38 C.F.R. § 3.307(a)(3).  In fact, during the Veteran's lifetime, service connection had been established for type II diabetes as a disease presumptively caused by herbicide exposure during his Vietnam service.  See 38 C.F.R. § 3.309(e).  Service connection had also been established for hypertension with diabetic nephropathy, peripheral neuropathy of the bilateral upper and lower extremities, bilateral diabetic retinopathy, and status post cerebrovascular accident, all as secondary to diabetes mellitus.  

A Nehmer class member is defined as 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.  38 C.F.R. § 3.816(b)(1)(i) and (ii).  The term "covered herbicide disease" includes ischemic heart disease.  38 C.F.R. §§ 3.309(e) and 3.816(b)(2).  

The Veteran's death certificate lists arteriosclerotic cardiovascular disease (ASCVD) as the immediate cause of death, secondary to insulin dependent diabetes mellitus and cardiovascular accident.  Service connection for the cause of the Veteran's death has already been granted. 

ASCVD is atherosclerotic involvement of arteries to the heart and to additional organs, resulting in debility or death; the term is sometimes used more narrowly as a synonym of ischemic heart disease.  See Dorland's 32nd ed. at p. 528 (2012).  As noted above, the Veteran served in the Republic of Vietnam during the Vietnam era, and is therefore presumed to have been exposed to herbicide agents.  Ischemic heart disease is presumptively associated with herbicide agent exposure in Vietnam.  See 38 C.F.R. § 3.309.  Therefore, entitlement to service connection for ischemic heart disease is established on a presumptive basis.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309. 

When a Nehmer class member entitled to retroactive benefits under 38 C.F.R. § 3.816 dies prior to receiving payment of any such benefits, such benefits are paid to the first individual or entity listed in § 3.816(f)(1) living or in existence at the time of payment.  As the Veteran's surviving spouse, the appellant is entitled to any retroactive benefits payable to the Veteran under § 3.816.  See 38 C.F.R. § 3.816(f)(1).  

Having established that the Veteran, and thereby the appellant, was a Nehmer class member, the Board finds that service connection under 38 C.F.R. §§ 3.309 and 3.816 is warranted.


ORDER

Service connection for ischemic heart disease for purposes of retroactive benefits under Nehmer v. United States Department of Veterans Affairs is granted.



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals









Department of Veterans Affairs