Citation Nr: 1752694 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-26 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a disability resulting from high cholesterol, for purposes of establishing entitlement to retroactive benefits to a Nehmer class member. REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Attorney at Law ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1977 to August 1989, including service in-country in the Republic of Vietnam. The Veteran died in May 2009. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The record shows that in September 1989, the Veteran filed a claim for service connection for high cholesterol, high blood pressure, vitreous detachment and retinal tear of the left eye, left 5th toe, nose bleeds, left hand tingling, neck tingling, and exposure to Agent Orange. In a May 1990 rating decision, service connection was granted for hypertension, degenerative changes of the cervical spine, and cyst on the left third toe, postoperative residual one centimeter scar. Service connection for all the other issues were denied with the exception of service connection for exposure to Agent Orange, which was deferred for further development. In June 1990, the Veteran was sent a letter asking him to clarify what disability he was claiming due to exposure to Agent Orange. No response was received from the Veteran. In November 1990, the Veteran was sent a letter stating no response had been received regarding the disabilities the Veteran believed were related to Agent Orange and therefore no further action would be taken. The Veteran was informed that he could reopen his claim at any time by submitting a signed statement specifying the disability or disabilities he had that he believed were a result of exposure to Agent Orange. The Veteran was informed that no further action would be taken unless the Veteran contacted the RO. No further action was taken by the Veteran on that, or any other claims, prior to his death in May 2009. After the Veteran's death, the appellant filed a claim for entitlement to DIC, and in a July 2009 rating decision entitlement was established based on the cause of the Veteran's death. The immediate cause of the Veteran's death is listed as a myocardial infarction due to hypertension. At the time of the Veteran's death, service connection was in effect for hypertension. The Board notes that in September 2010, the RO sent the appellant a letter stating that the Veteran's claims file was identified as a potential Nehmer class-member based on the addition of ischemic heart disease (IHD), Parkinson's disease, and B-cell/Hairy cell leukemia to the list of diseases presumptively associated with exposure to herbicide agents used in Vietnam. In December 2010, the appellant was sent a VCAA notice response, and on December 27, 2010 responded that she would like the RO to decide the claim as soon as possible. The Board notes that in the September 2010 and December 2010 letters sent to the appellant, the RO incorrectly stated the Veteran's case qualified for special Nehmer review based on a prior VA benefits claim for IHD. There is no evidence the Veteran ever filed a claim for service connection for IHD or any other heart condition prior to his death. In the March 2011 rating decision denying the claim, the issue was stated as entitlement to service connection for high cholesterol, for the purposes of entitlement to retroactive benefits. From the statement of the case and the supplemental statements of the case, it appears the RO is approaching the issue from the standpoint of whether the high cholesterol issue is somehow associated with ischemic heart disease. The representative appears to approach the issue from the standpoint of arguing that the evidence of record since the early 1990s actually established the presence of ischemic heart disease, which thereby constituted a claim of service connection for the disorder. Both positions were argued during the development of the issue, and the Board finds that both matters are encompassed in how the Board has styled the issue. In March 2014, the Board remanded the issue for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2016 statement, the representative argued that informal claims to reopen neck and left arm conditions were filed by the Veteran in September 2001, and that those claims were never adjudicated. The Board points out that the RO determined in a July 2009 decision that no claims were pending at the time of the Veteran's death, and therefore that entitlement to accrued benefits was denied. The appellant had one year from notice of that decision to appeal the RO's determination, and she did not. The current appeal originates from a Nehmer review action, and does not implicate the increased rating claims referenced by the representative. In any event, the above matters are referred to the RO for any appropriate action. FINDINGS OF FACT 1. At no time prior to his death did the Veteran file a claim, formal or informal, seeking service connection for ischemic heart disease, or for any heart disorder other than hypertension. 2. At no time prior to the Veteran's death was service connection denied for ischemic heart disease, or for any heart disorder other than hypertension. 3. The evidence does not establish the presence of ischemic heart disease prior to the Veteran's death. CONCLUSION OF LAW The criteria for the award of service connection for a disability resulting from high cholesterol for purposes of entitlement to retroactive benefits, have not been met. 38 U.S.C. A. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.114, 3.158, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA provided the appellant with 38 U.S.C.A. § 5103(a)-compliant notice in December 2010. VA also fulfilled its assistance obligations to the appellant, including with respect to obtaining a VA opinion in February 2016, and in obtaining private and VA treatment records, including those pertaining to the alleged myocardial infarction in 1992. The appellant contends that the Veteran's fatal myocardial infarction represented ischemic heart disease, and that the ischemic heart disease existed as of 1992, in light of what she believes was a prior myocardial infarction of that year. She appears to argue that service connection should be recognized for ischemic heart disease, with an effective date (i.e. retroactive benefits) commensurate with the date of the purported myocardial infarction. The RO views the issue as concerning whether service connection for the previously denied high cholesterol should be granted in light of Nehmer, along with a commensurate effective date, to include whether the Veteran had associated ischemic heart disease. The record shows that the Veteran filed a claim seeking service connection for high cholesterol, based on exposure to Agent Orange, in September 1989. He also applied for service connection for Agent Orange exposure. He applied for service connection for hypertension, but not for coronary artery disease or any other heart disorder. In a May 1990 rating decision, service connection for hypertension was granted. Service connection for high cholesterol was denied. The Veteran was advised of the rating action and of his appellate rights, but he did not initiate an appeal. As to the matter of service connection for Agent Orange exposure, he was informed that mere exposure was not a disorder, and was advised to inform VA of what disorders he was claiming as secondary to Agent Orange exposure. In November 1990, the Veteran was informed that as he had not responded to VA's request that he identify the specific disorder or disorders he believed were related to Agent Orange exposure, no further action would be taken on that claim. Thereafter, no further communication was received from the Veteran or any representative concerning any disorder until his death from a myocardial infarction with contribution by hypertension. In July 1990, service connection for the cause of the Veteran's death was granted, and entitlement to accrued benefits was denied. The appellant was notified of the July 1990 rating action and of her appellate rights, but she did not initiate an appeal. Although the representative believes that there was an informal claim pending for ischemic heart disease at the time of the Veteran's death, he is incorrect. He contends that pursuant to 38 C.F.R. § 3.157 (a regulation governing informal claims based on treatment records, which has since been rescinded), a July 1992 VA record should be accepted as a claim seeking service connection for ischemic heart disease, because it showed evidence of a myocardial infarction. The Board first points out that former regulation 38 C.F.R. § 3.157 did not apply to claims seeking service connection, unless a claim seeking service connection for that particular disorder had been denied on the basis that the disorder was noncompensable in nature. The Board next points out that the medical record at issue is actually a private medical record from Providence Hospital, and that record was received well after the Veteran's death. Former regulation 38 C.F.R. § 3.157 specified that private records could not serve as an informal claim under its auspices earlier than the date the private record was received by VA. The Board lastly points out that the July 1992 private record at issue would not serve as an informal claim under 38 C.F.R. § 3.157 in any event. As will be discussed in further detail below, the record at issue does not establish that the Veteran had a myocardial infarction, but rather that he was initially thought to have an myocardial infarction, and that by the end of hospitalization the findings on electrocardiogram were instead representative of early repolarization. Consequently, the Board finds that the July 1992 private medical records did not constitute a claim seeking service connection for ischemic heart disease. Nor do any of the VA treatment records from that period until the Veteran's death, as they do not reference any ischemic heart disease or myocardial infarction. The record shows that the Veteran during his lifetime never filed a claim, formal or informal, seeking service connection for ischemic heart disease, or for myocardial infarction. The Board points out that the Veteran's claim for service connection for Agent Orange was an effort to seek service connection for mere exposure to the defoliant. Such mere exposure was not a disability in and of itself then, nor is it now. More importantly, however, his claim seeking service connection for Agent Orange exposure may not properly be taken as a "placeholder" for ischemic heart disease or any other disorder. The Veteran was asked to specify if he believed a specific disorder resulted from the exposure, and he did not respond. This appeal arose from VA's initiation of review of the Veteran's file, after his death, pursuant to Nehmer v. U.S. Department of Veterans Affairs. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). The RO attempted to determine whether the appellant was a Nehmer class member through the mechanism of ischemic heart disease. For the purposes of § 3.816, a "Nehmer class member" means either 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) (2016). A "covered herbicide disease" means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.816 (b)(2). However, Nehmer review only applies to prior denials of service connection for diseases determined to be associated with exposure to herbicides. In this case, the Veteran was denied service connection in May 1990 for high cholesterol. Hyperlipidemia is not a "covered herbicide disease" under Nehmer. Nor is it ischemic heart disease. A claim seeking service connection on an herbicides basis for hyperlipidemia today could not be granted, as high cholesterol is still not considered a disease subject to presumptive service connection under the statute and regulations pertaining to herbicide exposure. Consequently, service connection for high cholesterol for the purpose of retroactive benefits is not warranted. The appellant really contends that ischemic heart disease was present as far back July 1992, and that retroactive benefits should be granted on that basis. As discussed previously, the Veteran never filed a claim seeking service connection for ischemic heart disease or myocardial infarction. As also discussed, the July 1992 private medical record can not be considered a claim seeking service connection for myocardial infarction or ischemic heart disease. The Board also points out that although the representative insists the July 1992 record established that the Veteran did have a myocardial infarction in July 1992, the evidence as a whole indicates that he did not. In this regard, the private hospitalization report notes that an initial electrocardiogram showed findings consistent with a myocardial infarction. Notably, however, the remainder of the hospital report is entirely negative for any further reference to myocardial infarction, and the final electrocardiogram results were instead felt to be more consistent with early repolarization. In short, the hospital report itself does not establish the occurrence of a myocardial infarction, as none of the Veteran's clinicians further mentioned an infarction, and the final diagnostic study was felt to represent something else entirely. Moreover, the Board finds it significant that VA treatment records from the 1990s up through the 2000s are entirely silent for any reference to ischemic heart disease or myocardial infarction. Those records do reference high cholesterol and hypertension, but are completely silent for reference to a significant cardiac history of myocardial infarction for ischemic heart disease. The Board finds that the initial diagnostic impression of myocardial infarction was rejected by treating clinicians in July 1992, and that the medical record otherwise was negative for reference to ischemic heart disease or myocardial infarction until the Veteran died. The Board notes that VA obtained a medical opinion to determine if there was any evidence of ischemic heart disease in the medical records prior to the Veteran's death. In February 2016, an examiner reviewed the record and concluded that the only myocardial infarction established by the record occurred when the Veteran died. As for the early repolarization, the examiner indicated there was no clear relationship between that finding and ischemic heart disease. The examiner concluded that the Veteran did not have a myocardial infarction, ischemic heart disease or coronary artery disease prior to death. The Board points out that service connection has been in effect since May 1990 for hypertension. Hypertension itself is not a disease subject to service connection on a presumptive basis, and thus can not service as a means to establish the presence of ischemic heart disease. They are separate disorders. In sum, no claim seeking service connection for ischemic heart disease was filed or denied prior to the Veteran's death, the evidence itself does not establish the presence of ischemic heart disease prior to the Veteran's death, and the Veteran's high cholesterol is not a disease subject to service connection on a presumptive basis such as to warranted retroactive benefits. Accordingly, the claim is denied. ORDER Entitlement to service connection for a disability resulting from high cholesterol, for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. ____________________________________________ THOMAS H. O'SHAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs