Citation Nr: 21026208 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 09-42 110 DATE: April 30, 2021 REMANDED Entitlement to accrued benefits in excess of $778.00 is remanded. REASONS FOR REMAND The Veteran had active duty service from December 1962 to December 1983. He died in September 2007. The Appellant is his surviving spouse. This matter originally came to the Board from an October 2007 administrative decision. The matter was remanded by the Board in April 2020. Entitlement to service connection for the cause of death was included in the April 2020 remand. A December 2020 rating decision granted service connection for cause of death. 1. Entitlement to accrued benefits in excess of $778.00 is remanded. The Veteran applied for service connection for Parkinson’s disease in August 2004. The claim was denied in May 2005 and June 2007. In conjunction with aforementioned claim for service connection for cause of death, the April 2020 Board remand requested development to determine whether the Veteran had service in Vietnam and to determine whether his Parkinson’s disease contributed to his death. A December 2020 rating decision determined the Veteran did have service in Vietnam and granted service connection for the Veteran’s cause of death based on Parkinson’s disease. Relevant to this case are the court orders of a United States District Court in the class action case of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816 . A Nehmer class member is defined as a Vietnam Veteran who “has a covered herbicide disease.” See 38 C.F.R. § 3.816 (b)(1). The covered diseases are noted to be those found in 38 C.F.R. § 3.309 (e), excepting chloracne. 38 C.F.R. § 3.816 (b)(2). In August 2010, VA issued a liberalizing regulation creating a new basis for the grant of service connection for Parkinson’s disease, as presumptively associated with exposure to herbicide agents. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). As applicable in this case, if the Veteran, a Nehmer class member, had a claim for disability compensation for a “covered herbicide disease” between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease (here August 31, 2010 for Parkinson’s disease), a Nehmer review of the file should have been undertaken to determine the Veteran’s eligibility for compensation. There is an indication the Veteran is entitled to service connection for Parkinson’s disease effective the date of his original application, as this was the basis of his service connection for cause of death. However, Parkinson’s disease is not currently service-connected, nor is there evidence the appropriate Nehmer review of the file was conducted. Such means that there is an outstanding issue of entitlement to service connection during the period for which accrued benefits are at issue. The Board cannot adjudicate the issue of entitlement to accrued benefits in excess of $778.00 until this development has been completed. Notably, if service connection for Parkinson’s disease were to be granted, the assignment of the disability rating could bring the Veteran’s total disability rating above 50 percent. The assignment of a total rating disability rating in excess of 50 percent could trigger the award concurrent receipt of military retired pay and service connected disability compensation as per 38 C.F.R. § 3.750. The matters are REMANDED for the following action: 1. Complete a Nehmer review of the Veteran’s claims file and determine whether he is entitled to service connection for any “covered herbicide diseases,” including Parkinson’s disease. 2. If Parkinson’s disease is granted under Nehmer, and after a rating and effective are assigned, readjudicate the benefits claimed. Consideration must be given to 38 C.F.R. § 3.750. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.