Citation Nr: 1754540	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-20 428	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to retroactive cause of death benefits pursuant to Nehmer v. U.S. Department of Veterans Affairs.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Dean, Counsel



INTRODUCTION

The Veteran served on active duty from October 1963 to December 1979.  He died in January 1997.  His spouse is also deceased.  The appellant is the Veteran's daughter.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  The  claims file is now in the jurisdiction of the St. Petersburg RO.

The Board notes the appellant had requested a videoconference hearing.  As the claim is being granted, her request for a Board hearing in this appeal has been rendered moot.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The Veteran died in January 1997 of cerebrovascular accident due to coronary artery bypass graft and coronary artery disease.

2. The Veteran was exposed to herbicides during his active military service in Vietnam.

3. The coronary artery disease that caused the Veteran's death is presumed to be related to exposure to herbicides.

4.  The Veteran's deceased spouse filed a claim for cause of death benefits in 1997.


CONCLUSION OF LAW

The criteria for retroactive cause of death benefits are met.  38 U.S.C. §§ 501, 1116, 1310 (2012); 38 C.F.R. §§ 3.307, 3.309, 3.312, 3.816 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Given the favorable action taken herein, no further discussion of the VCAA is required.

The Veteran's spouse filed a claim for cause of death benefits during her life.  Considering the procedural history of this appeal, this claim meet the criteria in 38 C.F.R. § 3.816(c)(2).  Regarding the evidence relevant to this appeal, the RO has conceded herbicide exposure.  The evidence also clearly indicates a contributing cause of death was coronary artery disease and this a herbicide agent presumptive disease under 38 C.F.R. §§ 3.307, 3.309.  Therefore, the spouse's then claim is substantiated under the coronary artery disease that was later added as a presumptive disease.  38 C.F.R. § 3.312.  Considering the foregoing, the criteria for entitlement to retroactive benefits under 38 C.F.R. § 3.816(f) for the surviving daughter, the appellant in this appeal, are met. 

The Board acknowledges that there remains a question as to whether the appellant in this case would be eligible to receive payment of unpaid retroactive benefits.  The record establishes that the appellant is the Veteran's daughter.  The Veteran died in January 1997, and his surviving spouse filed a timely cause of death claim in February 1997 that was denied.  According to records from the Social Security Administration, she is also now deceased.  The appellant filed her claim for benefits thereafter.  Her birth certificate is of record, and she was listed as the Veteran's dependent for other VA benefits prior to his death.  Thus, the appellant has met the threshold criteria for entitlement to payment of retroactive benefits.


ORDER

Entitlement to retroactive cause of death benefits pursuant to Nehmer v. U.S. Department of Veterans Affairs is granted, subject to the law and regulations governing the payment of monetary benefits.



____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs