Citation Nr: 1808706	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  14-44 154	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to service connection for acute myeloid leukemia for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S.


REPRESENTATION

Appellant represented by:	Joseph G. Odya, Agent


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran served on active duty from June 1958 to August 1966.  He died in July 2002, and the Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ) in in San Diego, California.  Jurisdiction of the claims file resides with the Reno, Nevada, RO.

The Appellant testified before the undersigned during a Board hearing held in January 2015.  A copy of the hearing transcript is of record.

In May 2017, the Board remanded the claims of service connection for acute myeloid leukemia and the cause of the Veteran's death for the further development.  After the requested development was completed, an October 2017 rating decision granted service connection for the cause of the Veteran's death (finding that the acute myeloid leukemia resulting in the Veteran's death was associated with his Agent Orange exposure while serving in Vietnam) from February 23, 2010, the date of receipt of the appellant's reopened claim for service connection for the cause of the Veteran's death.  Accordingly, this matter has been resolved and is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  At no time prior to his death in July 2002 did the Veteran file a claim, formal or informal, seeking service connection for acute myeloid leukemia, or any other cancer. 

2.  At no time prior to the Veteran's death was service connection denied for acute myeloid leukemia, or any other cancer.

3.  Acute myeloid leukemia is not a condition presumptively associated with herbicide exposure.


CONCLUSION OF LAW

The criteria for award of service connection for acute myeloid leukemia for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S. are not met.  38 U.S.C. § 501 (2012); 38 C.F.R. § 3.816 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

This is not a claim for accrued benefits.  Rather, the RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. U.S. Department of Veterans Affairs.  The provisions of 38 U.S.C. § 5121(c) and § 3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.816(f)(2) (2015).

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).  If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, 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, except as otherwise provided in paragraph (c)(3) of this section.  38 C.F.R. § 3.816(c)(2).  The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e).  See 38 C.F.R. § 3.816(b)(2).  This list includes B-Cell/Hairy Cell Leukemia (it does not include acute myeloid leukemia), which was added to the list of covered herbicide diseases effective from August 31, 2010.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010).  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 did not file a formal or informal claim seeking service connection for acute myeloid leukemia, or any other cancer, prior to his death in July 2002, and he had not been denied service connection for acute myeloid leukemia, or any other cancer, prior to his death.  In addition, acute myeloid leukemia is not a condition presumptively associated with herbicide exposure.  The appellant does not contend otherwise.  Rather, the Appellant has consistently argued service connection for the cause of the Veteran's death based on his acute myeloid leukemia and his presumed Agent Orange exposure while serving in Vietnam.  As noted above, the appellant has been awarded compensation benefits for the cause of the Veteran's death.  Service connection for acute myeloid leukemia was neither claimed by the Veteran nor denied during his lifetime and it has not been claimed by the Appellant for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S.  As such, there is no case or controversy over which the Board has jurisdiction.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200.  Based on the procedural history of this case and the foregoing discussion, the Board has no alternative but to dismiss the appeal.  See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

The appeal is dismissed.




____________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs