Citation Nr: 21073994 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-44 238 DATE: December 13, 2021 ORDER Service connection for ischemic heart disease (IHD), for purposes of establishing entitlement to retroactive benefits as a Nehmer class member, is denied. FINDING OF FACT The Veteran did not have qualifying service in the Republic of Vietnam during the Vietnam era. CONCLUSION OF LAW The criteria for service connection for IHD, for purposes of retroactive benefits, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to May 1970. The Veteran died in March 2016 from chronic obstructive pulmonary disease. See Death Certificate (March 2016). A July 2016 rating decision granted service connection for the Veteran's cause of death. The appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Pension Management Center (PMC). In April 2021, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 90 days for the submission of supporting evidence. The Board acknowledges the representative's request, dated in July 2021, that the case to be held open for a period of 60 days for the submission of evidence. The 60-day period has since elapsed, and additional evidence and argument has been received. Entitlement to service connection for IHD, for purposes of establishing entitlement to retroactive benefits to a Nehmer class member. The appellant, and her representative, contends that the Veteran's IHD stems from in-service exposure to herbicide agents. Specifically, the appellant argues that while stationed in Japan, the Veteran was exposed to herbicide agents because his military duties required him to refuel and maintain military aircrafts that were flown to and from Vietnam during the Vietnam War. See Hearing Transcript at 3 (April 2021). At the appellant's Board hearing in April 2021, it was agreed that the issue before the Board is entitlement to retroactive benefits pursuant to Nehmer v. Department of Veterans Affairs, based on the claimed deceased Veteran's entitlement to service connection for ischemic heart disease. It is noted that with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816. In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114. A Nehmer class member is a Vietnam Veteran who has a covered herbicide disease. Covered herbicide diseases include IHD and coronary artery disease. See 38 C.F.R. § 3.816(b); Nehmer v. United States Veterans Administration, 284 F.3d 1158, 1161 (9th Cir. 2002). Here, the Board finds that the Veteran did not have qualifying service in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.816(b)(1). Therefore, the benefit sought is not warranted, as explained more fully below. Initially, the Board notes that a review of the record reveals that there was no pending claim for IHD at the time of the Veteran's death in March 2016, and the appellant has not made a specific argument asserting that there was such a pending claim. Indeed, the appellant, in this instance, has limited the appeal to entitlement to retroactive benefits pursuant to Nehmer. Next, the Board observes that the provisions of 38 U.S.C. § 5121(c) and 38 C.F.R. § 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). 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 IHD, 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). In this case, after careful consideration, the Board finds that the appeal must be denied as the Nehmer case law is not applicable in this instance. More specifically, the appellant is not a Nehmer class member because the Veteran did not serve in the Republic of Vietnam during the Vietnam era. See 38 C.F.R. § 3.816(b)(1); Nehmer v. VA of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans' Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. U.S. Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I). The Nehmer decision, and the corresponding regulations set forth in 38 C.F.R. § 3.816, only apply to "Vietnam veterans," which does not include veterans with service outside of Vietnam, including in Japan. See 38 C.F.R. § 3.816(b)(1)(i). Here, the appellant maintains that the Veteran was exposed to herbicide agents while serving in Japan. Regardless of whether the Veteran may have had exposure to herbicide agents in Japan, the central question in this appeal is whether he set foot in Vietnam. On this question, the facts are not in dispute in showing that he did not set foot in Vietnam. In this regard, the Veteran's DD Form 214 does not reveal service in Vietnam and his military personnel records indicate that his foreign service only included service in Japan from July 1969 to March 1970. Because the appellant is not a Nehmer class member, retroactive benefits cannot be assigned on this basis. See 38 C.F.R. § 3.816. Because the appeal is limited in scope to this question and it is decided on the undisputed facts, it is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C. § 5107(b) are not for application. Likewise, VA's duties to notify and assist are not applicable under such circumstances. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.