Citation Nr: 18154924 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 14-29 375 DATE: December 4, 2018 ORDER Entitlement to service connection for ischemic heart disease as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. Entitlement to an effective date earlier than January 6, 1998 for diabetes mellitus for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. Entitlement to service connection for the cause of Veteran's death as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The Veteran did not have ischemic heart disease in active service or after separation from active service. 3. The Veteran died in November 2005 and the immediate cause of death was cardiorespiratory arrest due to intracranial hemorrhage; contributing causes of death were hepatitis C, congestive heart failure, and atrial fibrillation. 4. Ischemic heart disease was not a principal or contributory cause of the Veteran’s death. 5. On January 6, 1998, VA received the Veteran’s claim seeking service connection for disorders on the basis of herbicide exposure, and medical evidence dated December 1997 establishing a diagnosis of diabetes mellitus. 6. There was no unadjudicated claim of service connection for diabetes mellitus type II that was present prior to January 6, 1998. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease as a result of exposure to herbicides for purposes of retroactive benefits are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for the cause of Veteran’s death as a result of exposure to herbicides for purpose of retroactive benefits have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1310 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.312 (2018). 3. The criteria for an effective date earlier than January 6, 1998 for the award of service connection for diabetes mellitus type II as a result of exposure to herbicides are not met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was in the United States Marine Corps from June 1969 to June 1971. He served in Vietnam and was awarded a Combat Action Ribbon. The Veteran died in November 2005. The appellant is his surviving spouse. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 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, as the Veteran’s surviving spouse, 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, service connection for ischemic heart disease was denied in September 2001. Service connection for diabetes mellitus type 2 was granted and a 20 percent rating was assigned from July 9, 2001. The Veteran died in November 2005. Service connection for the cause of the Veteran’s death and entitlement to DIC benefits pursuant to 38 U.S.C. § 1318 were denied in a January 2010 Board decision. The appellant contends that the Veteran had ischemic heart disease that caused his death. The record shows that the Veteran had filed a claim for service connection for ischemic heart disease in February 2000 and August 2000. In February 2011, the RO notified the appellant that her and the Veteran’s case was identified as a potential Nehmer class member case based on the addition of Ischemic Heart Disease, Parkinson’s Disease, and B Cell/Hairy Cell Leukemia to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam. Entitlement to potential retroactive benefits applies to all cases wherein VA received a claim, or a claim for benefits was pending or wherein VA denied benefits on or after September 25, 1985 and before August 31, 2010. This case qualifies for the special review based on a possible prior VA benefits claim for one of the three new presumptive diseases. An October 2011 rating decision denied entitlement to service connection for ischemic heart disease and service connection for the cause of Veteran’s death as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member. The October 2011 rating decision assigned an effective date of January 6, 1998 for the award of diabetes mellitus for purposes of establishing entitlement to retroactive benefits to a Nehmer class member. The appellant perfected an appeal. In July 2018, the appellant’s attorney requested a decision on the appellant’s motion for substitution for purposes of adjudicating the claims. However, substitution is not permitted in this case since the Veteran died in November 2005, prior to October 10, 2008. The law allowing for substitution of certain eligible persons upon the death of a veteran for purposes of processing the claim to completion is only applicable in cases in which the Veteran died on or after October 10, 2008. See 38 U.S.C. § 5121A (2012). The law makes no provision for a substitution of claimant in a situation where the veteran died prior to October 10, 2008. 1. Entitlement to service connection for ischemic heart disease as a result of exposure to herbicides for purposes of retroactive benefits is denied. In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for a disability initially diagnosed after service when all of the evidence shows it to have been incurred in service. 38 C.F.R. § 3.303 (d) (2018). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In this case, cardiovascular disease is listed among the “chronic diseases” under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Presumptive service connection on the basis of herbicide exposure is provided for ischemic heart disease and other specified diseases manifested to a degree of 10 percent within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116 (a). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases listed in 38 C.F.R. § 3.309 (e) shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309 (e) and added ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina) to the list of diseases associated with exposure to certain herbicide agents. The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e), Note 3. The final rule is applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. Additionally, VA will apply this rule in readjudicating certain previously denied claims as required by court orders in Nehmer v. Department of Veterans Affairs, No. CV-86-6161 TEH (N.D. Cal.). Ischemic heart disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Notwithstanding the provisions of §§ 3.307, 3.309, the Veteran’s Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that “a Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The appellant argues that the Veteran had ischemic heart disease and service connection is warranted on a presumptive basis. The Veteran was in the United States Marine Corps from June 1969 to June 1971. He served in Vietnam and was awarded a Combat Action Ribbon. The Board finds that this evidence shows that the Veteran served in the Republic of Vietnam during the Vietnam era, and the service requirements of 38 U.S.C. § 1116 (a) are met. The Board finds that the weight of the competent and credible evidence establishes that the Veteran’s heart disorder manifested by congestive heart failure and atrial fibrillation is not ischemic heart disease and therefore, presumptive service connection is not warranted under 38 U.S.C. § 1116 and 38 C.F.R. § 3.307. Review of the record shows that during the Veteran’s period of service, there were no findings of symptoms or diagnosis of ischemic heart disease. See the February 1969 enlistment examination report and the June 1971 separation examination report. The Veteran separated from service in June 1971. A February 1998 VA treatment record shows an assessment of congestive heart failure and angina; and a September 1998 VA treatment record problem list for the Veteran lists heart disease, other specified congenital anomalies of the heart, chronic ischemic heart disease, congestive heart failure, other and unspecified angina pectoris, and essential hypertension. January 2005 hospital records indicate that the Veteran was admitted for exams to rule out a myocardial infarction. It was noted that the Veteran was having chest pain and he had an underlying history of heart disease. The January 2005 discharge summary lists discharge diagnoses of congestive heart failure, cardiomyopathy, and hypertension. The January 2005 hospital records show that the Veteran underwent an exercise stress test, cardiac catherization, echocardiogram, and a nuclear myocardial perfusion study. On October 30, 2005, the Veteran presented to the hospital with headache and dizziness and he was found to have acute hemorrhagic cerebrovascular accident. The Veteran died on November [redacted], 2005. The death summary indicates that the Veteran had a history of congestive heart failure and new onset of atrial fibrillation in addition to history of hepatitic C infection, and renal insufficiency. The Veteran underwent two surgeries during the hospitalization and did not recover. The death certificate indicates that the immediate cause of death was cardiorespiratory arrest, due to intracranial hemorrhage, and the contributing causes of death were hepatitis C, congestive heart failure, and atrial fibrillation. In August 2011, VA obtained a medical opinion to determine whether the Veteran had a form of ischemic heart disease and if so, whether the ischemic heart disease contributed to the Veteran’s death. The VA nurse practitioner stated that the available medical records did not show any evidence that the Veteran suffered from ischemic heart disease, and that his cause of death was not related to ischemic heart disease. The nurse practitioner stated that the rationale for the opinion was that a 1997 ECG showed lateral wall ischemia, but a cardiolite stress test performed in February 1998 showed a left ventricular enlargement which could be related to long standing hypertension, there were no fixed or reversible defects of myocardial perfusion, and no evidence of ischemia. The nurse practitioner stated that the Veteran’s cause of death, as stated by his personal physician in an opinion of October 18, 2006, indicates that the Veteran died from an intracranial hemorrhage related to hypertension and atrial fibrillation. In August 2018, VA obtained a medical opinion by a VA cardiologist to determine whether the Veteran had a form of ischemic heart disease. The VA cardiologist stated that the Veteran’s medical records were reviewed. The VA cardiologist noted that on January 19, 2005, the Veteran underwent a cardiac catherization at the M. Infirmary Medical Center. As per the scanned report, the Veteran had an angiographically normal coronary arteries. An echocardiogram was performed at the same facility on January 8, 2005. The scanned report showed that the Veteran’s ejection fraction was 52 percent. Given the combination of the angiographically normal coronary arteries and an ejection fraction of 52 percent, the VA cardiologist concluded that there was no evidence of ischemic heart disease and the subsequently intracranial hemorrhage that resulted in his death was not due to ischemic heart disease. The Board finds the August 2011 and August 2018 VA medical opinions to have great evidentiary weight in deciding this appeal. The VA nurse practitioner and VA cardiologist reviewed the Veteran’s medical history and medical records and diagnostic tests reports before rendering the medical opinions. The VA examiners cited to the medical evidence and facts which supported the medical conclusion that the Veteran did not have ischemic heart disease. In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Id. For these reasons, the Board has assigned great probative weight to the VA medical opinions as the opinions reflect a comprehensive review of the entire evidentiary record. The medical opinions are based on sufficient facts and data. See Prejean; supra and Nieves-Rodriguez; supra. The Board finds that the weight of the competent and credible evidence establishes that the Veteran did not have ischemic heart disease. The Board acknowledges that the September 1998 VA problem list reports ischemic heart disease as a problem for the Veteran. However, the probative value of the August 2011 and August 2018 VA medical opinions outweigh this problem list notation because as discussed above, the VA medical opinions were based upon the medical evidence of record including diagnostic test results. The VA examiners provided the basis for the medical opinions. It is not clear from the September 1998 notation what the basis of this diagnosis was, and in any event, a problem list does not establish the actual presence of a disorder; rather it indicates that someone reported a history of such a disorder. In an October 2018 statement, the Veteran’s attorney argued that the August 2018 VA medical opinion did not contain sufficient detail and analysis to support the opinion. The attorney appears to object to the VA cardiologist’s interpretation of the diagnostic test results, specifically the results of the January 2005 cardiac catherization, the January 2005 echocardiogram, and the January 2005 Nuclear Myocardial Perfusion Study, and the attorney argues that these test results show evidence of ischemia. The Board finds that the VA medical opinions dated in August 2011 and August 2018 are more probative than the statements made by the Veteran’s attorney, as the attorney lacks the medical expertise to diagnose ischemic heart disease. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no evidence that the attorney has medical expertise and she did not submit any medical evidence or medical opinions to support her interpretation of the evidence. The Board finds that the weight of the competent and credible evidence supports a finding that the Veteran did not have ischemic heart disease. The Board finds, in particular, that Dr. R., as a cardiologist, has the skill and expertise to evaluate cardio test results and come to a conclusion as to whether there is evidence of ischemic heart disease. See Black v. Brown, 10 Vet. App. 279, 284 (1997). As such, the Board finds the medical opinion by Dr. R., the VA cardiologist, to have great probative weight. The appellant herself asserts that the Veteran’s heart disease was ischemic heart disease. The appellant’s own assertions are afforded no probative weight in the absence of evidence that the appellant has the expertise to render opinions about complex medical matters. An opinion of etiology would require knowledge of the complexities of the cardiovascular system and the various causes of heart disease would involve objective clinical testing that the appellant is not medically qualified to perform. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to whether the Veteran’s heart disease was ischemic or is related to active service falls outside the realm of common knowledge of a lay person. See Jandreau, supra. Thus, the Board finds that the claim of service connection for ischemic heart disease on a presumptive basis as due to Agent Orange exposure must fail because the herbicide presumption set forth in 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 does not apply. The weight of the evidence shows that the Veteran did not have ischemic heart disease and therefore, this disability is not one of the enumerated disabilities that are presumed due to herbicide exposure that are listed under 38 C.F.R. § 3.309 (e). The claim for service connection for ischemic heart disease as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. 2. Entitlement to service connection for the cause of the Veteran’s death as a result of exposure to herbicides for purposes of retroactive benefits is denied. Dependency and Indemnity Compensation (DIC) benefits may be awarded to a surviving spouse upon the service-connected death of the Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. § 3.5 (a); see 38 U.S.C. Chapter 11. Generally, service connection for the cause of the Veteran’s death is warranted if the death resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101 (16), 1110, 1131; 38 C.F.R. §§ 3.1 (k), 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303 (a); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA considers the Veteran’s death as due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312 (a). A principal (primary) cause of death is one that singly or jointly with some other condition was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312 (b). A contributory cause of death is one that contributed substantially or materially to death, hastened it, or aided or lent assistance to death. 38 C.F.R. § 3.312 (c). There are primary causes of death that, by their very nature, are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In such a situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was, itself, of a progressive or debilitating nature. 38 C.F.R. § 3.312 (c)(4). Medical evidence is required to establish a causal connection between service or a disability of service origin and the Veteran’s death. Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). As noted above, in February 2011, the RO notified the appellant that the Veteran’s case was identified as a potential Nehmer class member case based on the addition of Ischemic Heart Disease, Parkinson’s Disease, and B Cell/Hairy Cell Leukemia to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam, and the case qualified for the special review based on a possible prior VA benefits claim for one of the three new presumptive diseases. The October 2011 rating decision denied entitlement to service connection for ischemic heart disease and service connection for the cause of Veteran’s death as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member. The Board finds that entitlement to service connection for the cause of Veteran’s death as a result of exposure to herbicides for purposes of establishing entitlement to retroactive benefits to a Nehmer class member is denied. In this case, the Veteran died in November 2005. The death certificate lists the primary cause of his death as cardiorespiratory arrest, due to intracranial hemorrhage. Contributing causes of death were hepatitis C, congestive heart failure, and atrial fibrillation. None of these disorders were service-connected at the time of his death. As discussed in detail above, the weight of the competent and credible evidence establishes that the Veteran did not have ischemic heart disease and the cause of the Veteran’s death was not related to ischemic heart disease. Thus, the claim for service connection for the cause of the Veteran’s death due to ischemic heart disease is denied. The Board notes that the appellant’s attorney argued in the July 2012 notice of disagreement that the RO committed error in the October 2011 rating decision because the RO did not consider whether service connection for the cause of the Veteran’s death was warranted as due to the service-connected disabilities to include post traumatic stress disorder (PTSD) and diabetes mellitus type II. However, the Board finds that the RO properly reviewed the claim for service connection for the cause to the Veteran’s death with consideration of the new presumptive diseases due to herbicide exposure. As noted, in February 2011, the RO notified the appellant that her and the Veteran’s case was identified as a potential Nehmer class member case based on the addition of Ischemic Heart Disease, Parkinson’s Disease, and B Cell/Hairy Cell Leukemia to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam, and the case qualified for the special review based on a possible prior VA benefits claim for one of the three new presumptive diseases. The Board finds that the October 2011 rating decision properly adjudicated entitlement to service connection for the cause of Veteran’s death as a result of ischemic heart disease due to exposure to herbicides. The Board further notes that the issue of entitlement to service connection for the cause of the Veteran’s death as secondary to the service-connected PTSD and diabetes mellitus type II was adjudicated in the January 2010 Board decision. The January 2010 Board decision is final. The appellant has the option of submitting a claim to reopen entitlement to service connection for the cause of the Veteran’s death as secondary to the service-connected PTSD and diabetes mellitus type II pursuant to 38 C.F.R. § 3.156 (2018). Entitlement to an effective date earlier than January 6, 1998 for the award of service connection for diabetes mellitus type II is denied. As noted above, the October 2011 rating decision granted an effective date of January 6, 1998 for the award of service connection for diabetes mellitus type II as a result of exposure to herbicides. The basis for the effective date assigned was receipt of an informal claim for service connection for a disease due to herbicide exposure at VA on January 6, 1998 and evidence of a diagnosis of diabetes mellitus type II. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the appellant’s claim was received by VA prior to that date, the former regulations apply, as provided below. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The applicable statutory and regulatory provisions require that VA look to all communications from the veteran which may be interpreted as applications or claims-formal and informal-for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 511 (b)(2); 38 C.F.R. §§ 3.1 (p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997). VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, pursuant to orders of a United States District Court in the class action case of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816. A Nehmer class member is defined as a Vietnam veteran who has a “covered herbicide disease.” Id. 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 pursuant to the Agent Orange Act of 1991, Public Law 102-4. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816 (c)(1)-(3). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(1), (c)(2). However, if the requirements of 38 C.F.R. § 3.816 (c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). In this case, the Veteran was granted presumptive service connection for diabetes mellitus type II based on exposure to herbicide agents during service in Vietnam. As such, he is a Nehmer class member. A September 2001 rating decision granted service connection for diabetes mellitus type II and assigned July 9, 2001 as the effective for the award which, the rating decision indicates, was the date of the liberalizing law that added diabetes mellitus type II to the list of disabilities presumptively caused by exposure to herbicide agents. The Board notes that the legislation was then made retroactive by the United States Court of Appeals for the Federal Circuit back to May 8, 2001. See Liesegang v. Sec’y of Veterans Affairs, 312 F.3d 1368 (Fed. Cir. 2002). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(1), (c)(2). If neither circumstance exists, the effective date of the award of service connection shall be determined in accordance with either 38 C.F.R. § 3.114 or § 3.400. See 38 C.F.R. § 3.816 (c)(4). Pursuant to the Nehmer May 1991 Stipulation and Order, awards of disability compensation may, in some circumstances, be made effective retroactive to the date of an earlier claim that was filed or denied before such regulations were issued. See 66 Fed. Reg. 23166, 23167 (May 8, 2001). Relevant to the Veteran’s claim, a Nehmer class member can receive the effective date of an unrelated earlier claim if evidence of the covered condition is submitted in the course of the appeal for the unrelated claim. Specifically, if at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now-covered condition (e.g., diabetes mellitus), then the condition is considered to have been part of the previously denied claim. However, medical records alone do not constitute a claim for Nehmer purposes. See Veterans Benefits Administration’s (VBA’s) Revised Training Letter 10-04 at 19 (Feb. 10, 2011). Review of the record shows that the Veteran filed a claim for service connection for disorders due to herbicide exposure in January 6, 1998. At that time, the claims file included evidence that the Veteran had a diagnosis of diabetes mellitus; the December 1997 VA hospital records show a diagnosis of diabetes mellitus. Thus, the Board finds that the Veteran filed his first claim for compensation benefits for diabetes mellitus on January 6, 1998. Prior to January 6, 1998, nothing in the record can be reasonably viewed as a claim for compensation for diabetes mellitus. Because the Veteran’s claim was received more than one year after his separation from military service, as noted previously, the effective date will be the later of the date of claim or the date the disability arose. See 38 C.F.R. § 3.816 (c)(2). Therefore, the earliest possible effective date for the award of service connection for diabetes mellitus is January 6, 1998, which is the date of claim. As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. In the present case, the date the claim was received on January 6, 1998, is later than the date entitlement arose. Therefore, an effective date prior to January 6, 1998, for diabetes mellitus type II is not warranted. In reaching the above conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel