Citation Nr: 21003312 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-30 286 DATE: January 21, 2021 ORDER The June 22, 2020 Board decision that granted service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, is vacated. Service connection for non-ischemic cardiomyopathy, for accrued benefits purposes pursuant to Nehmer, is denied. FINDINGS OF FACT 1. At the time of the Veteran’s death in February 2008, there was no pending claim for service connection for non-ischemic cardiomyopathy, or any other heart disorder. 2. The grant of service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, in the June 22, 2020 Board decision was clear and unmistakable error. 3. Non-ischemic cardiomyopathy is not recognized by VA as a disease associated with exposure to certain herbicides. 4. The preponderance of the evidence of record is against finding that the Veteran had ischemic heart disease at any time during his lifetime. CONCLUSIONS OF LAW 1. The criteria for vacating the June 22, 2020 Board decision that granted service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, have been met. 38 U.S.C. §§ 7104(a), 7111; 38 C.F.R. §§ 20.1000, 20.1400. 2. The criteria for service connection for non-ischemic cardiomyopathy, for accrued benefits purposes pursuant to Nehmer, have not been met. 38 U.S.C. §§ 1110, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1965 to January 1968. The Veteran died in February 2008; the Appellant is his surviving spouse. Whether the June 22, 2020 Board decision that granted service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, should be vacated Accrued benefits are periodic monetary benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran’s death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000. In a June 22, 2020 decision, the Board granted service connection for non-ischemic cardiomyopathy, for accrued benefits purposes. The Board found that the Veteran’s non-ischemic cardiomyopathy was aggravated by his service-connected diabetes mellitus type II. However, upon further review, the Board observes that, at the time of the Veteran’s death in February 2008, there was no pending claim for service connection for non-ischemic cardiomyopathy, or any other heart disorder. A Board decision may be vacated at any time upon the Board’s own motion. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. A Board decision is also subject to revision based on clear and unmistakable error. 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. Regrettably, the Board finds that the grant of service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, in the June 22, 2020 Board decision was clear and unmistakable error as there was no pending claim for service connection for non-ischemic cardiomyopathy, or any other heart disorder, at the time of the Veteran’s death in February 2008. Thus, the June 22, 2020 Board decision that granted service connection for non-ischemic cardiomyopathy, for accrued benefits purposes, is vacated. Service connection for non-ischemic cardiomyopathy, for accrued benefits purposes pursuant to Nehmer In July 2010, the Agency of Original Jurisdiction (AOJ) initiated a special review of the Veteran’s claims file pursuant to Nehmer v. United States Department of Veterans Affairs. 38 C.F.R. § 3.816 (2016); Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002). In a July 2010 letter, the AOJ notified the Appellant that a special review of the Veteran’s case would be conducted in accordance with Nehmer which requires the payment of retroactive benefits to certain Nehmer class members. The AOJ noted that the Veteran’s case was identified as a potential Nehmer class member case based on the addition of ischemic heart disease as a disease presumptively associated with exposure to certain herbicides. Thus, the special review was limited to whether the Veteran had ischemic heart disease, and the Appellant’s appeal should have been limited accordingly. Regrettably, in a May 2018 remand, the Board broadened the scope of the claim to include any heart disorder and that characterization was continued in the June 22, 2020 decision. Here, the Board will properly review the Appellant’s limited appeal for service connection for a heart disorder presumptively associated with exposure to certain herbicides pursuant to Nehmer. After review, the Board finds that the Veteran did not have ischemic heart disease at the time of his death in February 2008. All of the medical evidence of record, including a December 2007 VA examination report, VA medical records, and the death certificate, shows that the Veteran had non-ischemic cardiomyopathy. Non-ischemic cardiomyopathy is not recognized by VA as a disease associated with exposure to certain herbicides. 38 C.F.R. § 3.309(e). Thus, the preponderance of the evidence of record is against finding that the Veteran had ischemic heart disease at any time during his lifetime. Therefore, retroactive benefits based on a heart disorder presumptively associated with exposure to certain herbicides pursuant to Nehmer is not warranted. Accordingly, the Board concludes that service connection for non-ischemic cardiomyopathy, for accrued benefits purposes pursuant to Nehmer, is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.