Citation Nr: 21024763 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-39 551 DATE: April 26, 2021 REMANDED Entitlement to an effective date earlier than October 23, 2014, for service connection for peripheral vascular disease bilaterally of the lower extremities (PVD) is remanded. Entitlement to an effective date earlier than October 23, 2014 for service connection for coronary artery disease (CAD) is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1968 to August 1970. He testified in a May 2019 Board hearing. A transcript is of record. The Judge who conducted that hearing is no longer at the Board. The Veteran was offered an opportunity for an additional hearing, and responded that he did not want an additional Board hearing on these matters. In July 2019, the Board of Veterans’ Appeals (Board) decided the issues addressed herein. The Veteran appealed. In November 2020 the United States Court of Appeals for Veterans Claims (the Court) granted a joint motion for remand (JMFR), vacating the Boards July 2019 decision and remanded the issues. The Court determined that the Board erred when it failed to consider evidence of the Veteran’s diagnosed medical conditions during the filing of his April 1, 1997 claim for benefits and whether it may reasonably be construed as the same covered herbicide disease for which compensation has been awarded under Nehmer v. U.S. Dept. of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 14, 1991). Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. However, the claimed disability in this appeal became affected by liberalizing law and regulation via Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). CAD became presumptive to Agent Orange herbicide exposure on August 31, 2010. 38 C.F.R. § 3.309 (e); see 75 Fed. Reg. 53, 202 (August 31, 2010). The Veteran’s CAD is considered an ischemic heart disease, a medical fact not in controversy. Thus, in a March 2016 rating decision, the RO granted service connection for the Veteran’s coronary artery disease based on the presumptive service connection determined from the association between herbicide exposure in Vietnam and the subsequent development of the coronary artery disease. Generally, the effective date of an award of service connection granted pursuant to a liberalizing law or VA administrative issue is the effective date of the liberalizing law or administrative issue, if the claim is received within one year after such date. Thus, under the provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 ordinarily cannot be made effective earlier than the date VA issued the regulation authorizing the presumption. Id. Notably, ischemic heart disease was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309 (e), which was made effective by VA as of August 31, 2010. Ischemic heart disease includes, “but is not limited to” several conditions, including coronary artery disease. Id. However, Federal Court orders have created an exception to the generally applicable rules in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114, which were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). That regulation defines a “Nehmer class member” to include a Veteran who has, or died from, a covered herbicide disease, as here. 38 C.F.R. § 3.816 (b)(1)(i), (b)(2)(i). The holdings in the Nehmer cases established an exception to 38 C.F.R. § 5110 (g), in that “Nehmer class members” could be assigned earlier effective dates than the date of the law and regulations that established presumptive service connection for a “covered herbicide disease.” See 38 C.F.R. § 3.816 (c)(2); see also 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). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) 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 May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, 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, whichever is later. 38 C.F.R. § 3.816 (c)(1), (c)(2). The Veteran’s current representative has highlighted the VA’s Nehmer Training Guide provides the following explanation of Footnote 1 of the Nehmer Final Stipulation and Order: The footnote says, in effect, that prior VA decisions are deemed to have denied SC for any condition that paragraph 46.02 of the M21-1 (in 1991) required to be coded in the rating decision. At that time, the M21-1 said that the rating decision should identify and “code” each diagnosis shown by medical records even if not claimed. For example, if the RO in 1990 denied a claim for service connection for arthritis and the Veteran’s medical records showed a diagnosis of IHD, the Manual required VA to list IHD in the rating decision. Under Nehmer, the RO decision is treated as having denied a claim for IHD if IHD was coded in the rating decision or it should have been coded in the rating decision. VA Nehmer Training Guide, p. 19 (Feb. 10, 2011). It is noted that some of these provisions have since been revised and moved to other administrative documents. This argument was not previously raised, and in view of that the Board concludes that initial consideration by the Agency of Original Jurisdiction (AOJ) of the facts of the case, and the provisions applicable to AOJ determinations is indicated. Manual provisions, unless they are found to be regulatory, are not generally binding on the Board. See 38 U.S.C. § 7104. Here, service connection has been granted for CAD and for PVD as secondary thereto. There appears to be evidence of coronary pathology in 1997. Some leg swelling is also noted, however, it is not clear whether it is PVD. Medical determination on that point may be needed. The Veteran asserts that the April 1, 1997 claim for service connection for PTSD was sufficient for the RO to consider evidence of the Veteran’s other diagnosed medical conditions. The Veteran also asserts that the VA failed to consider the April 1, 1997 treatment records in which the Veteran reported numbing in his hip and left leg and the examiner noted a drop in blood pressure and heart rate. The Veteran was diagnosed with hypertension. It is further asserted that the VA also failed to consider that the Veteran was diagnosed with musculoskeletal soreness and that May 1997 electrocardiogram findings revealed an inferior infarct. The Veteran contends that these disorders were present during his April 1, 1997 claim for benefits, and at the time of the September 1997 grant of service connection for PTSD. It is likewise asserted most recently, that under Nehmer training, this was a denial of CAD and PVD. In view of the foregoing, these matters are Remanded for the following action: Undertake initial review of the instant claims with initial consideration of the arguments and positions advanced most recently by the Veteran’s representative. This should include consideration of when the first evidence of PVD is shown, and if medical opinion on that matter is needed, it should be obtained. Full consideration of the findings of leg numbness that appear in the record should be undertaken. All findings and reasons should be set   out. If the Veteran and his representative are not satisfied with the results, a supplemental statement of the case should be provided and the matter returned to the Board in accordance with applicable procedures. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.