Citation Nr: 18151843 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-50 021 DATE: November 20, 2018 ORDER Entitlement to service connection for ischemic heart disease, for accrued benefits purposes, is denied. REMANDED Entitlement to service connection for leukemia, to include myelodysplastic syndrome and myeloproliferative disorder, is remanded. Entitlement to service connection for the cause of the Veteran's death is remanded. FINDING 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-related disorder other than syncope. 2. At no time prior to the Veteran’s death was service connection denied for ischemic heart disease, or for any heart-related disorder other than syncope. 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 ischemic heart disease for accrued benefits purposes have not been met. 38 U.S.C. §§ 5107, 5110, 5121 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.160, 3.400, 3.816, 3.1000 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1964 to October 1967, from January 1970 to October 1973, and from July 1977 to July 1987. VA accepts his in-country service in the Republic of Vietnam. The Veteran died in June 2010. The appellant is the Veteran’s surviving spouse. The appellant has been substituted onto the appeal of the Veteran’s claim for service connection for leukemia, to include myelodysplastic syndrome. In an October 2016 statement, the appellant’s representative requested that the claim be expedited due to serious illness as the appellant has Parkinson’s disease and she resides in an assisted living facility. As such it is considered a motion to Advance on the Docket (AOD). Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107 (a)(2) (2012); 38 C.F.R. § 20.900 (c) (2018). The Board has considered the Veteran’s motion and finds that the Veteran has submitted sufficient evidence to demonstrate the necessity of an AOD. The motion for AOD is therefore granted. 1. Entitlement to service connection for ischemic heart disease for accrued benefits purpose Accrued benefits are periodic monetary benefits, other than insurance and servicemen’s indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121 (2012); 38 C.F.R. § 3.1000 (2018). While an accrued benefits claim is separate from a veteran’s claim filed prior to death, the accrued benefits claim is derivative of the veteran’s claim; thus, an appellant takes the veteran’s claim as it stood on the date of death, but within the limits established by law. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). For a surviving spouse to be entitled to accrued benefits, the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). “[A] pending claim” is defined as “an application, formal or informal, which has not been finally adjudicated.” 38 C.F.R. § 3.160 (c) (2018). Here, the record shows that nearly 4 years after the Veteran’s death (June 2010), the appellant filed a claim in April 2014 for entitlement to service connection for ischemic heart disease. There is no evidence the Veteran ever filed a claim for service connection for ischemic heart disease. The appellant’s representative appears to approach the issue from the standpoint of arguing that private medical evidence of record since September 2009 established the presence of ischemic heart disease, which thereby constituted a claim of service connection for the disorder. In the alternative, the representative notes that the Veteran’s previously denied claim for service connection for syncope in a May 1988 rating decision warrants entitlement to retroactive benefits as a Nehmer class-member. The record shows that the Veteran filed a claim for service connection for syncope in August 1987, and his claim was denied in a May 1988 rating decision because the evidence failed to demonstrate current disability or current residuals from in-service syncopal episodes. He did not initiate an appeal to that rating decision. Next, the record shows that the Veteran then filed a claim seeking service connection for diabetes mellitus and leukemia, based on exposure to Agent Orange, in September 2008. He did not apply for ischemic heart disease or any other heart-related disorder. The appellant, through her representative, sincerely believes that there was an informal claim pending for ischemic heart disease at the time of the Veteran’s death. That is, she contends that a September 2009 private medical records that shows diagnostic evidence of atherosclerotic calcifications should be accepted as a claim seeking service connection for ischemic heart disease. However, in fact, there was no pending claim at the time of the Veteran’s death. Rather, this private medical evidence was not submitted until after the Veteran’s death and was only identified by the appellant in conjunction with her claim for service connection for the cause of the Veteran’s death. Consequently, the Board finds that the September 2009 private medical record does not constitute a claim seeking service connection for ischemic heart disease. Nor do any of the treatment records from the VA and military medical facilities from that period until the Veteran’s death, as they do not reference any ischemic heart disease. The Board finds it significant that VA treatment records from this period are entirely silent for any reference to ischemic heart disease. The record shows that the Veteran during his lifetime never filed a claim, formal or informal, seeking service connection for ischemic heart disease. See 38 C.F.R. § 3.160 (c). The Board points out that the Veteran’s September 2008 claim for service connection for Agent Orange was an effort to seek service connection for diabetes mellitus and leukemia on presumptive basis for those conditions. 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 must identify what condition he believed resulted from such exposure, and the record shows that he asserted his diabetes mellitus and leukemia were result of his exposure to Agent Orange. The Board next turns to the representative’s alternative assertion that the Veteran’s ischemic heart disease should be service connected based on his being a Nehmer class member. 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). For the purposes of 38 C.F.R. § 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) (2018). 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) (2018). 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 1988 for syncope. Syncope is not a “covered herbicide disease” under Nehmer. Although the representative asserts that the Veteran’s syncope may have marked the onset of his ischemic heart disease, he is not competent to provide such medical opinion which is beyond lay observation. Moreover, there was competent medical evidence of ischemic heart disease contained in claims folder until after the Veteran’s death. A claim seeking service connection on an herbicides basis for syncope today could not be granted, as syncope is still not considered a disease subject to presumptive service connection under the statute and regulations pertaining to herbicide exposure. Consequently, service connection for ischemic heart disease for the purpose of retroactive benefits under 38 C.F.R. § 3.816 is not warranted. The Board points out that service connection has been in effect for diabetes mellitus, which is a disease subject to service connection on a presumptive basis. However, this award cannot serve as a means to establish the presence of ischemic heart disease. They are distinct 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 syncope is not a disease subject to service connection on a presumptive basis such as to warranted retroactive benefits. Accordingly, the claim for service connection for ischemic heart disease for accrued benefits purposes is denied. REASONS FOR REMAND 1. Entitlement to service connection for myelodysplastic syndrome, to include myeloproliferative disorder is remanded. 2. Entitlement to service connection for the cause of the Veteran's death is remanded. Prior to his death, the Veteran filed a claim for entitlement to service connection for leukemia, to include myelodysplastic syndrome (MDS) and myeloproliferative disorder (MPD). He asserted that he developed MDS and MPD as result of his in-service exposure to Agent Orange. In the alternative, the appellant has asserted that the Veteran developed MDS and MPD as result of his exposure to chemicals in jet fuel, including benzene, while performing his duties as an aviation electronic technician during his 14 years of military service. VA has already conceded the Veteran’s exposure to Agent Orange as well as exposure to benzene and other chemicals in jet fuel based on his military service. VA obtained medical opinion in September 2016 that determined that the Veteran’s diagnosed leukemia, MDS and MPD, were not considered Hairy Cell or other B-cell leukemia to support award of service connection on presumptive basis. Also, in the September 2016 VA medical opinion report, the VA examiner provided a medical opinion that addressed whether the Veteran’s diagnosed leukemia was a result of his exposure to chemicals and toxins in jet fuel, to include benzene. The VA examiner concluded that a review of the medical literature does not reveal any direct or indirect cause and effect relationship between myelodysplastic syndrome and occupational exposure to jet fuel and/or other benzene products. Since then, the appellant’s representative has identified several internet medical articles that demonstrate a relationship between myelodysplastic syndrome and exposure to benzene. See October 2016 statement attached to VA Form-9 substantive appeal. Accordingly, the Board finds that an addendum medical opinion is needed to consider the additional medical literature references. Further, although the Veteran’s diagnosed leukemia, myelodysplastic syndrome and myeloproliferative disorder, is not considered Hairy Cell or other B-cell leukemia to support presumptive service connection based on herbicide exposure, the Board finds that a medical opinion is still needed to address the appellant’s assertion that the cause of the Veteran’s death, leukemia, was a result of his in-service exposure to herbicides. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s leukemia, to include myelodysplastic syndrome and myeloproliferative disorder, is at least as likely as not related to his in-service exposure to chemicals and toxins in jet fuels, to include benzene. In doing so, the examiner should consider the medical references identified by the appellant’s statement in the October 2016 substantive appeal, VA Form-9. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s leukemia, to include myelodysplastic syndrome and myeloproliferative disorder, is at least as likely as not related to his in-service exposure to herbicide agents, including Agent Orange. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel