Citation Nr: 20007330 Decision Date: 01/29/20 Archive Date: 01/28/20 DOCKET NO. 17-61 317 DATE: January 29, 2020 ORDER Entitlement to an effective date earlier than January 14, 1994, for the grant of service connection for congestive heart failure and cardiomegaly pursuant to the Nehmer Court Orders is denied. FINDING OF FACT 1. The Veteran died in May 2000; his death certificate listed his immediate cause of death as atherosclerotic heart disease, a specifically enumerated form of ischemic heart disease. 2. The Veteran served in the Republic of Vietnam; exposure to herbicide agents is presumed. 3. VA did not deny a prior claim of service connection for ischemic heart disease between September 25, 1985, and May 3, 1989, and such a claim was not pending before VA on May 3, 1989, or received by VA between that date and the Veteran’s death. 4. The most probative evidence of record indicates the Veteran was not diagnosed with ischemic heart disease prior to his death. CONCLUSION OF LAW The criteria for an effective date earlier than January 14, 1994, for the grant of service connection for congestive heart failure and cardiomegaly have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.155, 3.307, 3.309, 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1964 to February 1970 and from April 1970 to February 1973, including service in the Republic of Vietnam. The Veteran died in May 2000 and the appellant is the Veteran’s surviving spouse. The matter comes before the Board of Veterans' Appeals (Board) from August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which reconsidered the effective date of the service connection for congestive heart failure and cardiomegaly pursuant to orders of a United States District Court (Court) in the class action of Nehmer v. United States Department of Veterans Affairs, based on the Veteran's service in the Republic of Vietnam and presumed exposure to herbicide agents. See 38 C.F.R. § 3.816; see also 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). In the August 2015 decision, the previous effective date of January 14, 1994, was confirmed and continued. The Board notes that a January 2014 rating decision also denied entitlement to an earlier effective date for service connection for congestive heart failure and cardiomegaly. The appellant filed a notice of disagreement in January 2015. In March 2015, the appellant withdrew her appeal and requested reconsideration. Retroactive benefits under Nehmer were also denied in an August 2013 rating decision. Entitlement to an earlier effective for the grant of service connection for congestive heart failure and cardiomegaly. The appellant asserts that an effective date as early as the Veteran’s separation from service in February 1973 is warranted. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). The implementing regulation clarifies this to mean that the effective date of an award of service connection on a claim reopened after final disallowance "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A "claim" is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155 (a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; see also Norris v. West, 12 Vet. App. 413, 421 (1999). The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). Effective August 31, 2010, ischemic heart disease was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309 (e); see 75 Fed. Reg. 53, 202 (August 31, 2010). In general, when VA compensation benefits (among other specified types of VA benefits) are awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA (Secretary) or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). However, there is an exception to this rule under 38 C.F.R. § 3.816 which was promulgated pursuant to orders of the Court in the class-action case of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991); 38 C.F.R. § 3.816 (a), (e). Under 38 C.F.R. § 3.816, for certain diseases added by the Secretary to the list of diseases presumed to be caused by Agent Orange exposure, as set forth in 38 C.F.R. § 3.309 (e), compensation benefits may be awarded prior to the effective date of the amendment adding the newly covered herbicide agent disease. These retroactive provisions apply to the addition of ischemic heart disease to the presumptive list in August 2010. See 75 Fed. Reg. 53,202 (providing that the Nehmer rules apply to the presumptive diseases newly added to § 3.309(e), including ischemic heart disease). The retroactive provisions of § 3.816 provide, in pertinent part, that when a compensation claim for a covered herbicide agent disease is denied in a decision issued between September 25, 1985, and May 3, 1989, or is pending before VA on May 3, 1989, or 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 of service connection is the later of the date the claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c). In other words, notwithstanding the fact that there was a prior final denial of the claim, or that the claim was submitted prior to the effective date of the newly established presumption for a covered herbicide agent disease, the effective date of service connection may be as early as the date of the original claim, as opposed to the date of the petition to reopen or the effective date of the new law. For determining entitlement to retroactive benefits for the grant of a covered herbicide agent disease under 38 C.F.R. § 3.816, a claim will be considered a claim for compensation for a covered herbicide agent disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide agent disease. 38 C.F.R. § 3.816 (c)(2)(i). In the alternative, such a claim will be established for the purposes of § 3.816 if VA issued a decision on the claim between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, and VA denied compensation in that decision for a disease that reasonably may be construed as the same covered herbicide agent disease for which compensation has been awarded. 38 C.F.R. § 3.816 (c)(2)(ii). Thus, there is no intent requirement to establish a claim under 38 C.F.R. § 3.816 (c)(2)(ii) for the purpose of entitlement to retroactive benefits pursuant to the Nehmer provisions. As an initial matter, there is no dispute that the Veteran served in the Republic of Vietnam during the Vietnam War, and thus, is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307 (a)(3). There is, however, no evidence that he had this problem when he was discharged from service. The Veteran’s death certificate listed his cause of death as arteriosclerotic heart disease due to hypertension and end stage renal disease. The Board notes that arteriosclerotic heart disease is considered ischemic heart disease under 38 C.F.R. § 309(e). At the time of his death, the Veteran was already in receipt of service connection for the congestive heart failure, cardiomegaly, and hypertension. A June 2013 Agent Orange Screening Checklist identified the Veteran’s congestive heart failure and cardiomegaly as similar to ischemic heart disease. Thus, VA's Nehmer-mandated review of the Veteran's claims file was limited to whether he was entitled to an earlier effective date for these service-connected disabilities. The Board notes that although ischemic heart disease is subject to presumptive service connection for herbicide agent exposure; congestive heart failure, cardiomegaly, and hypertension are not subject to presumptive service connection. 38 C.F.R. § 3.309. Further, 38 C.F.R. § 3.309 (e) specifically distinguishes hypertension and excludes it from the definition of ischemic heart disease for the purposes of service connection. See 38 C.F.R. § 3.309 (e), Note 2; 38 C.F.R. § 3.816 (b)(2). Ischemic heart disease includes, but is 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). 38 C.F.R. § 3.309 (e). Here, the Veteran's medical records do not show a diagnosis of ischemic heart disease as defined in 3.309(e) until his death. Therefore, the Board finds there is no competent, credible, and probative evidence of ischemic heart disease prior to the Veteran’s death, and the Nehmer rule is not for application. In any event, even if the Veteran had evidence of ischemic heart disease prior to his death, retroactive benefits under Nehmer are not warranted, as a claim of service connection for any heart disorder other than his congestive heart failure, cardiomegaly, and hypertension was not denied between September 25, 1985, and May 3, 1989, nor was a claim received by VA between May 3, 1989, and the Veteran's death. The record is also absent any evidence that may reasonably be construed as an intent to apply for compensation for ischemic heart disease. See 38 C.F.R. § 3.816 (c)(1), (2)(i). Based on the foregoing, there simply is no legal authority for the Board to assign any earlier effective date pursuant to Nehmer. Accordingly, the claim for an effective date earlier than January 14, 1994, for the grant of service connection for congestive heart failure and cardiomegaly is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.155, 3.307, 3.309, 3.400, 3.816. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Appellant's claims, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.