Citation Nr: 21073857 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 15-40 055 DATE: December 10, 2021 ORDER Entitlement to an earlier effective date of November 1, 1993 for the grant of service connection for mitral valve regurgitation with ischemic heart disease is granted. FINDINGS OF FACT 1. The Veteran is a Nehmer class member as a Vietnam Veteran who has been diagnosed with a disorder presumptively associated with herbicide exposure, to include ischemic heart disease. 2. The Veteran submitted his claim for a heart condition on November 10, 1993, within one year from his separation from service. 3. The record shows that the Veteran's mitral regurgitation manifested during his military service. CONCLUSION OF LAW The criteria for an earlier effective date of November 1, 1993 for the grant of service connection for mitral valve regurgitation with ischemic heart disease have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1969 to August 1972, and March 1973 to October 1993, to include service in Vietnam. The appeal originates from a July 2011 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO issued a rating decision in September 2015 granting service connection for ischemic heart disease from January 20, 2015. The Board remanded the claim of service connection for a mitral valve condition in September 2018 for additional development. An April 2020 rating decision granted service connection for mitral valve regurgitation with ischemic heart disease effective January 18, 2012, the date the RO determined that a diagnosis of mitral regurgitation was made based upon an echocardiogram. The appeal came before the Board again in April 2021, when the Board remanded to obtain additional medical records and an addendum medical opinion. The RO issued a supplemental statement of the case in July 2021. The appeal has been returned to the Board for further appellate review. Entitlement to an earlier effective date of November 1, 1993 for the grant of service connection for mitral valve regurgitation with ischemic heart disease The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for mitral valve regurgitation because the evidence shows that his mitral valve condition manifested during his military service, well prior to the designated effective date of January 18, 2012. In general, the effective date of an award of compensation on a claim of entitlement to service connection, including presumptive service connection, will be, the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). However, VA has promulgated special rules for the effective dates of grants of presumptive service connection for exposure to herbicides in accordance with orders of a United States District Court in the class action Nehmer v. United States Department of Veterans Affairs. 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). A Nehmer class member is defined as a Vietnam Veteran who has been diagnosed with a disorder presumptively associated with herbicide exposure, to include ischemic heart disease. Certain effective dates apply to a grant of compensation 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; or if a class member's claim was received within one year from the date of the class member's separation from service and either of the first two conditions are met. 38 C.F.R. § 3.816(c)(1)-(3). If a Nehmer class member's claim was denied between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided for claims received within one year from the date of a class member's separation. 38 C.F.R. § 3.816(c)(1). If a Nehmer class member's claim either was 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 for claims received within one year from the date of a class member's separation. 38 C.F.R. § 3.816(c)(2). If a Nehmer class member's claim meeting the conditions described in either 38 C.F.R. § 3.816(c)(1) and (2) is received within one year from the date of the class member's separation from active service, the effective date of the award shall be the day following the date of the class member's separation from active service. 38 C.F.R. § 3.816(c)(3). If the requirements of 38 C.F.R. § 3.816(c)(1) and (2) are not met, the effective date of the grant of compensation shall be assigned according to the rules contained in 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). In this case, the record reflects that the Veteran had a claim for benefits pending before VA between May 3, 1989 and the effective date of the applicable liberalizing law of October 30, 2010 , served in Vietnam, and was granted presumptive service connection for mitral valve regurgitation with ischemic heart disease based on exposure to herbicides during such service. As such, he is a Nehmer class member. Moreover, the record establishes that the Veteran was separated from military service on October 31, 1993 and submitted his claim for service connection for a heart condition on November 10, 1993. See DD Form 214; see also VA 21-525 Veterans Application for Compensation or Pension, November 10, 1993. Therefore, he submitted his claim within one year from his separation from military service. Thus, the question for the Board is whether the evidence of record demonstrates that the Veteran's mitral valve regurgitation condition manifested prior to submission of his claim for service connection for a heart condition, or whether the service-connected heart condition arose after he submitted his claim for service connection. The September 2020 rating decision acknowledged a diagnosis of the Veteran's mitral regurgitation condition based upon the findings of a January 18, 2012 echocardiogram. Consistent with the April 2021 Board remand, an addendum VA heart examination opinion was provided in July 2021. The examiner indicated that the earliest diagnosis of the mitral regurgitation was January 20, 2015, but the examiner acknowledged that the Veteran's mitral disease was noted on an echocardiogram in 1993. The diagnosis of a condition is not what gives rise to an effective date, but the manifestation of the condition. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition). The Board notes that the September 2019 VA heart examination also recognized that the echocardiogram of May 1993 demonstrated the Veteran had physiologic mitral regurgitation. The echocardiogram of May 1993, providing an impression of physiologic mitral regurgitation, is in the Veteran's service treatment records. The Veteran also had an electrocardiogram performed in May 1993 that suggested ischemia. The Veteran underwent a stress test at that time which did not show ischemia. The Veteran also underwent multiple cardiovascular examinations and stress tests since May 1993 that were normal. However, upon being provided another echocardiogram on January 18, 2012, the echocardiogram again showed the Veteran had mitral regurgitation, consistent with the May 1993 echocardiogram. Therefore, objective testing supports that the Veteran's mitral regurgitation had manifested by May 1993. Given that the RO accepted the January 18, 2012 echogardiogram as sufficient evidence of the Veteran's manifestation of mitral regurgitation to establish that date as the effective date of his grant of service connection for mitral valve regurgitation, it is unclear why the May 1993 echocardiogram finding was not recognized as objective testing sufficient to document the manifestation of his mitral valve regurgitation condition. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Affording the Veteran all benefit of the doubt, the evidence sufficiently demonstrates, and is at least in equipoise, that the Veteran's mitral regurgitation had manifested by May 1993. Therefore, because the Veteran is a Nehmer class member who submitted his claim for service connection for a heart condition within one year from the date of his separation, and the evidence establishes that his mitral regurgitation condition had manifested during his military service, prior to submission of his claim for service connection for a heart condition, the appropriate effective date of the grant for service connection for mitral valve regurgitation with ischemic heart disease is the day following his separation from military service, November 1, 1993. Accordingly, entitlement to an earlier effective date of November 1, 1993 for the grant of service connection for mitral valve regurgitation with ischemic heart disease is granted. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.