Citation Nr: 18155208 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-40 223 DATE: December 3, 2018 ORDER Retroactive benefits earlier than January 7, 1987, pursuant to Nehmer v. Veterans Administration of the Government of the United States (Nehmer) is denied. FINDINGS OF FACT 1. The Veteran died in June 1987 from ventricular fibrillation, due to old myocardial infarction, congestive heart failure and coronary artery disease (CAD), a covered herbicide agent disease under Nehmer. 2. The Veteran had service in Vietnam during the Vietnam era from November 1966 to December 1966 and exposure to herbicide agents is conceded. 3. VA received the Veteran’s original claim for service connection for vascular hypertension disorder on January 22, 1973, and service connection was awarded for this claim and assigned a 40 percent disability rating in a March 1973 rating decision effective December 14, 1972, the day following the Veteran’s discharge from service. 4. A June 1984 rating decision granted an increase evaluation for hypertensive cardiovascular disease with cor pulmonale and congestive heart failure, (previously rated as hypertension) currently rated at 40 percent to 100 percent disabling effective April 10, 1984, the date such first manifested. 5. A June 1986 rating decision reduced the evaluation for hypertensive cardiovascular disease with renal failure (previously rated as hypertensive cardiovascular disease with cor pulmonale and congestive heart failure) to 80 percent, effective April 18, 1986. 6. The Veteran appealed the June 1986 rating decision that reduced the 100 percent disability rating from 100 percent to 80 percent disabling for congestive heart failure and renal insufficiency with vascular hypertension disorder, and the 80 percent evaluation was upheld by the Board of Veterans Appeals January 1987 decision. 7. A May 1987 rating decision granted an increase evaluation for renal failure with hypertensive cardiovascular disease and congestive heart failure from 80 percent to 100 percent disabling effective January 7, 1987, and the 100 percent evaluation remained in effect until the date of the Veteran’s death in June 1987. 8. The evidence of record indicates that no medical evidence received by VA After September 25, 1985 and prior to January 7, 1987, included a diagnosis of a covered herbicide disease pursuant to Nehmer and therefore an effective date prior to January 7, 1987, is not warranted pursuant to special effective date rules applicable for Nehmer class members or based on a liberalizing change in law. 9. During his lifetime, the Veteran received retirement benefits for his disabilities in lieu of VA disability compensation and never filed a claim of entitlement to service connection for VA compensation. CONCLUSION OF LAW The criteria for award of retroactive benefits for CAD prior to January 7, 1978 under Nehmer are not met. 38 U.S.C. § 501; 38 C.F.R. § 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for a total of 27 years including from November 1966 to December 1972, with service in the Republic of Vietnam. He retired from active military service in December 1972. He died in June 1987, and the appellant is the Veteran’s surviving spouse. This matter is on appeal from a March 2015 rating decision, which denied the appellant entitlement to retroactive benefits under Nehmer for coronary artery disease (CAD). The appellant was offered the opportunity to testify before the Board and ultimately denied the offer in her VA Form 9 signed December 2015. In addition, the Board notes that a July 1987 rating decision granted the appellant’s claim for service connection for cause of death effective June 1, 1987-the first day of the month in which the Veteran passed away. The appellant was also notified by VA in a letter dated in May 1993 that she was not entitled to accrued benefits because she did not file a claim within one year of the Veteran’s death. Her request to reopen this claim was denied by a 2007 Board decision. The appellant filed a November 2014 claim seeking retroactive benefits under a special review of the file pursuant to the court order Nehmer v. the Department of Veteran’s Affairs. Specifically, she asserts in her VA Form 9 that she is seeking an evaluation of 100 percent for the Veteran’s heart disorder from the day after discharge on December 14, 1972 until the date of his death on June 5, 1987, under the Nehmer court order. 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. In a May 1987 rating decision, the Veteran was granted an increased rating from 80 percent to 100 percent disabling for his service-connected heart disability with an effective date of January 7, 2007. Essentially, the appellant contends that this was not the first date of evidence of the Veteran’s covered herbicide disease (CAD). 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. Which includes: ischemic heart disease (including but not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease (CAD)). Retroactive benefits may be paid under Nehmer, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease. See 38 C.F.R. § 3.816. Nehmer class member means: (i) a Vietnam Veteran who has a covered herbicide disease; or (ii) 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). Here, the appellant is a surviving spouse, of a deceased Vietnam Veteran who died from coronary artery disease, a covered herbicide disease. Therefore, the appellant is a Nehmer class member. 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, we can only consider evidence received from September 25, 1985, because there is no entitlement to retroactive benefits from 1972 to September 25, 1985 for Nehmer class members. Thus, the Board finds that the appeal must be denied as the earliest possible effective date (January 7, 1987), as it is the date the disability arose and has already been assigned. Upon review of the entire file, the evidence of record shows that the earliest medical evidence for a claim for Nehmer purposes was January 7, 1987, because no evidence in the record received prior to January 7, 1987 and after September 25, 1985 relates to any claimed disability that could reasonably be construed as an Agent Orange-related disability affected by the Nehmer Court Order. The Veteran was granted service connection for vascular hypertension, and assigned a 40 percent initial rating effective December 14, 1972, the day after discharge from military service. A June 1984, rating decision granted an increased evaluation for hypertensive cardiovascular disease with cor pulmonale and congestive heart failure (previously rated as hypertension) to 100 percent effective April 10, 1984. A June 1986, rating decision reduced the evaluation for hypertensive cardiovascular disease with renal failure (previously rated as hypertensive cardiovascular disease with cor pulmonale and congestive heart failure) to 80 percent due to improvement. A January 1987 Board decision denied the Veteran’s appeal of the 80 percent June 1986 rating decision. Medical records from the Womack Army Medical Center Hospital showed the Veteran was admitted to their facility on January 7, 1987 for the treatment of non-service connected medical issues. He was also treated for chronic renal failure with a rising creatine level and congestive heart failure. On January 19, 1987, the Veteran suffered a myocardial infarction and was transferred to the Durham VAMC. According to the Durham VAMC Hospital Summary on VA Form 10-100, the Veteran was admitted to their facility for sleep apnea and ventilator dependence. He was treated for and diagnosed with chronic renal insufficiency, type IV renal tubular acidosis and chronic obstructive pulmonary disease. It was also noted that the Veteran was diagnosed with but not treated for congestive heart failure with dilated cardiomyopathy, hypertension and anemia. The Veteran was discharged on April 8, 1987. The Veteran submitted a claim for an increased evaluation on January 22, 1987. A May 1987 rating decision, granted the 100 percent evaluation for renal failure with hypertensive cardiovascular disease with congestive heart failure. The effective date was January 7, 1987. The Board finds the appellant is not entitled to a retroactive date prior to January 7, 1987, as a Nehmer class member. The appellant did not submit nor does the record support medical evidence of the Veteran’s diagnosis of a covered herbicide disease after September 25, 1985 and prior to January 7, 1987. As such, retroactive benefits are not warranted under Nehmer. In an October 2018 brief, the appellant’s representative raised issues that are not before the Board. In addition, he argued that a retroactive date should be assigned for the Veteran’s coronary artery disease because the Veteran’s heart disorders were not properly rated and should be rated separately. Under the provisions of 38 C.F.R. 4.14 for avoidance of pyramiding, the evaluation of the same disability under various diagnoses is to be avoided. Disabilities or diseases of the heart may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Congestive heart failure and/or coronary artery disease may fall under the umbrella of ischemic heart disease and may result from many causes and manifestation under different diagnoses are to be avoided. Since the Veteran’s conditions and manifestations affect the same body system and vital organ, the heart, we are unable to grant an increase evaluation as due to the diagnosis of coronary artery disease, even though coronary artery disease is a presumptive condition under 38 C.F.R. 3.309(e), because as per regulation of 38 C.F.R. 4.14 we cannot grant different entitlements under the same affected area, disease process or affected system and/or organ If, however, absence of a kidney is the sole renal disability, even if removal was required because of nephritis, the absent kidney and any hypertension or heart disease will be separately rated. Also, in the event that chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. Here, there is no evidence that shows the Veteran required dialysis or underwent surgery for a nephrectomy in order to separate the evaluations for renal disease from the heart disease for VA rating purposes. The evidence of VA record shows that effective January 7, 1987, the Veteran was diagnosed with hypertensive cardiovascular disease, coronary artery disease with chronic renal insufficiency. The Veteran’s condition was evaluated as 100 percent disabling. This is the maximum evaluation allowed by law. (Continued on the next page)   Accordingly, the claim for retroactive benefits earlier than January 7, 1987, under Nehmer is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel