Citation Nr: 1806470 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-25 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for ischemic heart disease due to herbicide agent exposure, for the purposes of entitlement to retroactive benefits. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1966 and January 1967 to June 1970. Service in the Republic of Vietnam is indicated by the record. The Veteran died in July 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In November 2017, the appellant presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. FINDINGS OF FACT 1. The appellant is the Veteran's surviving spouse. 2. Payment of retroactive benefits due to a deceased Nehmer class member may be made to the Veteran's surviving spouse. 3. The Veteran had service in Vietnam during the requisite time period, such that exposure to an herbicide agent may be presumed; during his lifetime, he had diagnoses of unstable angina, atherosclerotic heart disease, and acute myocardial infarction. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the Veteran's ischemic heart disease, including unstable angina, atherosclerotic heart disease, and acute myocardial infarction, are presumed to have been the result of disease or injury incurred in service and the criteria for an award of service connection for purposes of entitlement to retroactive benefits have been met, subject to the governing regulations pertaining to the payment of monetary benefits. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue currently before the Board is entitlement to service connection for ischemic heart disease due to herbicide agent exposure, for the purposes of entitlement to retroactive benefits. In July 2008, the Veteran filed a claim of entitlement to service connection for congestive heart failure secondary to service-connected posttraumatic stress disorder (PTSD). He died that same month. In August 2008, the appellant filed a claim of entitlement to dependency and indemnity compensation (DIC) benefits including service connection for the cause of the Veteran's death. In an October 2008 rating decision, service connection for the cause of the Veteran's death was granted secondary to diabetes mellitus, type II. The appellant filed a notice of disagreement (NOD) in October 2009 in which she asserted, in part, that service connection for myocardial infarction was warranted. In December 2010, in accordance with the holding in Nehmer v. United States Veterans Admin., 712 F.Supp. 1404 (N. D. Cal.1989), the RO undertook to review the Veteran's claims file and adjudicate the issue of entitlement to service connection for ischemic heart disease. In a February 2012 rating decision, the RO denied entitlement to service connection for ischemic heart disease due to herbicide agent exposure for purposes of entitlement to retroactive benefits. The appellant filed another NOD in February 2012 and a statement of the case (SOC) was issued in August 2012. She perfected a timely appeal in August 2012. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicide agents coincident with his service there. See 38 C.F.R. § 3.307(a)(3). In fact, during the Veteran's lifetime, service connection had been established for diabetes mellitus, type II, as a disease presumptively caused by herbicide agent exposure during his Vietnam service. See 38 C.F.R. § 3.309(e). Service connection had also been established for diabetic nephropathy with hypertension and diabetic retinopathy with diabetic cataracts. Notably, service connection for the cause of the Veteran's death was granted in the October 2008 rating decision based a finding that the Veteran's death was secondary to complications of diabetes mellitus, type II. A Nehmer class member is defined as 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)(i) and (ii). The term "covered herbicide disease" includes ischemic heart disease. 38 C.F.R. §§ 3.309(e) and 3.816(b)(2). Regarding payment of benefits stemming from claims readjudicated in accordance with Nehmer, the Board notes that when a Nehmer class member entitled to retroactive benefits dies prior to receiving payment of any such benefits, VA will pay the amount of retroactive benefits due an identified payee in accordance with 38 C.F.R. § 3.816(f) without requiring an application from the payee. 38 C.F.R. § 3.816 (f). The provisions of 38 U.S.C. § 5121(c) (2012) and 38 C.F.R. § 3.1000 (2017) requiring survivors to file claims for accrued benefits do not apply to Nehmer payments under 38 C.F.R. § 3.816(f). Thus, there is no need for a potential beneficiary to submit a timely application for any available retroactive Nehmer benefits. Rather, any such benefits owing the now-deceased Veteran must be paid to the first individual or entity listed in 38 C.F.R. § 3.816(f)(i)-(iv). Turning to the merits of the claim, the law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). With respect to the claimed disability, in the February 2012 rating decision and August 2012 SOC, RO denied the appellant's claim based upon a finding that the Veteran was not diagnosed with ischemic heart disease during his lifetime. However, a review of the claims file shows that the Veteran was diagnosed with arteriosclerotic coronary heart disease (ASCHD), unstable angina, and acute myocardial infarction prior to his July 2008 death. See the private treatment records dated June 2008 and July 2008, and the VA treatment records dated July 2008. Additionally, the Veteran's death certificate identified his primary cause of death as acute myocardial infarction. As defined in the regulation, ischemic heart disease includes, but is not limited to, 'acute, subacute, and old myocardial infarction,' atherosclerotic cardiovascular disease, and unstable angina. 38 C.F.R. § 3.309 (e). Therefore, the evidence of record clearly shows that the Veteran was diagnosed with ischemic heart disease during his lifetime. As noted above, the Veteran served in the Republic of Vietnam during the Vietnam era, and is therefore presumed to have been exposed to herbicide agents. Ischemic heart disease is presumptively associated with herbicide agent exposure in Vietnam. See 38 C.F.R. § 3.309. Therefore, entitlement to service connection for ischemic heart disease is established on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. § 3.309. When a Nehmer class member entitled to retroactive benefits under 38 C.F.R. § 3.816 dies prior to receiving payment of any such benefits, such benefits are paid to the first individual or entity listed in § 3.816(f)(1) living or in existence at the time of payment. As the Veteran's surviving spouse, the appellant is entitled to any retroactive benefits payable to the Veteran under § 3.816. See 38 C.F.R. § 3.816(f)(1). Accordingly, the Board finds that the Veteran had ischemic heart disease, as defined by regulation, during his lifetime. Therefore, the Veteran's ischemic heart disease is presumed to have been incurred in service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). As such, the claim of entitlement to service connection for ischemic heart disease, to include acute myocardial infarction, arteriosclerotic heart disease, and unstable angina, due to herbicide exposure, for the purposes of entitlement to retroactive benefits, is granted. ORDER Service connection for ischemic heart disease for the purposes of entitlement to retroactive benefits is granted, subject to the governing regulations pertaining to the payment of monetary benefits. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs