Citation Nr: 18141103 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-30 516 DATE: October 9, 2018 ORDER Entitlement to retroactive benefits for chronic lymphocytic leukemia is denied. FINDINGS OF FACT 1. The Veteran did not file a claim for chronic lymphocytic leukemia. 2. The Veteran did not submit a claim, either formal or informal, for service connection for chronic lymphocytic leukemia. 3. The Veteran is a Nehmer class member. CONCLUSION OF LAW Entitlement to retroactive benefits for chronic lymphocytic leukemia is not warranted. 38 U.S.C. §§ 1154 (a), 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.816, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1958 to November 1986. The Appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The record shows that Dependency and Indemnity Compensation was established on January 14, 2005. Entitlement to retroactive benefits for chronic lymphocytic leukemia (CLL) The Appellant contends that retroactive benefits are warranted for CLL. The Veteran has acknowledged service in the Republic of Vietnam and herbicide agent exposure has been conceded. The Veteran also had a diagnosis of CLL which is a disease presumptively associate with his conceded herbicide agent exposure. VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also 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). Specifically, a Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” 38 C.F.R. § 3.816. According to 38 C.F.R. § 3.816 (b)(2) a “covered herbicide disease” includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985 and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989 and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816 (c)(1) - (3). Class members are entitled to retroactive benefits in cases in which VA received a claim for benefits based on one or more of the diseases presumptively associated with exposure to certain herbicide agents, or where VA denied benefits on or after September 25, 1985, and the date that specific condition was added to the list of presumptive disabilities associated with herbicide exposure in Vietnam (chronic lymphocytic leukemia was added to the list of presumptive disabilities on October 16, 2003).   The evidence of record shows that the Appellant filed a claim for Dependency and Indemnity Compensation in November 2004 which was subsequently established on January 14, 2005. The evidence of record does not show that the Veteran ever filed or was denied a claim for service connection for CLL. The record also did not include a diagnosis of CLL, to include on a constructive basis. Therefore, there is no basis for assigning an effective date for service connection for CLL. Consequently, the Appellant’s claim for entitlement to retroactive benefits for CLL is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel