Citation Nr: A21013050 Decision Date: 08/02/21 Archive Date: 08/02/21 DOCKET NO. 191126-47128 DATE: August 2, 2021 REMANDED Entitlement to an effective date prior to October 10, 2014 for the Veteran's service-connected diabetes mellitus is remanded. Entitlement to an effective date prior to October 10, 2014 for the Veteran's service-connected coronary artery disease (CAD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1974 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran disagreed with the above-noted rating decision and filed a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Veteran selected the Direct Review lane by submitting notice of disagreement under the appeals Modernization Act (AMA). 38 C.F.R. § 19.2(d). Accordingly, the Board is limited to review of the evidence in the record up and until the date of the rating decision on appeal; for the issues addressed herein that date is November 12, 2019. 38 C.F.R. § 20.301. In July 2020, the Board denied the Veteran's above claims and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a March 2021 Joint Motion for Partial Remand, the Court vacated the Board's July 2020 decision with regard to these issues and remanded the claims for further development and readjudication. The Veteran was issued an April 19, 2021 notice letter and given 90 days to submit additional argument. Earlier Effective Date for Diabetes Mellitus. The Board notes that the Record for review may be incomplete. A July 2015 Transmittal of and/or Entitlement to Awards completed by the Navy Personnel Command indicated a review of service records which entitled the Veteran to the Armed Forces Expeditionary Medal for his Participation in Operation Frequent Wind. The Veteran then submitted a July 2015 DD 215, and on the basis of this updated record the RO conceded herbicide exposure for the Veteran. This indicates the existence of records which could help substantiate the Veteran's claim for an earlier effective date under 38 C.F.R. § 3.156. As such, the RO must attempt to locate the Veteran's personnel records. Further, the Board recognizes that the recent Federal Circuit decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), has significantly increased the potential significance of any in-service presence within the 12-nautical mile territorial sea of the Republic of Vietnam during the Vietnam War in cases featuring claimed exposure to herbicide agents. The Veteran is not expected to have made specific contentions regarding his shipboard proximity to Vietnam, if any, prior to the issuance of the significant new holding. The Board is unable to find that the evidence of record is sufficient to make a firm determination as to whether he did or did not have any presence within the 12-nautical mile territorial sea of Vietnam during his Vietnam War service. In addition, Congress very recently enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019. 116 P.L. 23, 133 Stat. 966 (2019). Accordingly, a remand is also warranted in order to obtain copies of the ship logs on the U.S.S. Anchorage to determine whether the Veteran served within the 12-nautical miles of the shore of Vietnam. Earlier Effective Date for CAD In the March 2021 Joint Motion for Remand, the parties agreed that the Board must whether 38 C.F.R. § 3.816, and the relevant M21-1 Manual provisions regarding whether the Veteran's October 2008 claim for diabetes could also be construed as a claim for CAD. The Board addresses the relevant provisions as part of its remand below. 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, 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 VA RO in 1990 denied a claim for service connection for arthritis and the Veteran's medical records showed a diagnosis of ischemic heart disease, the Manual required VA to list the heart disease as a non-service connected in the rating decision. Under the Nehmer Training Guide, the RO decision is treated as having denied a claim for ischemic heart disease even if it did not code the disability as the Manual required. See July 2021 Appellant's Brief; see also VA Nehmer Training Guide, p. 19 (Feb. 10, 2011). The Board notes that some of these provisions have since been revised and moved to other administrative documents. Additionally, the Board notes that 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. There appears to be evidence that the Veteran was diagnosed with CAD in 2008. See September 2008 Atlanta VAMC treatment note. The Veteran asserted that the October 31, 2008 claim for service connection for diabetes mellitus type II was sufficient for the RO to consider evidence of the Veteran's other diagnosed medical conditions. The Veteran contends that this disorder was present during his October 31, 2008 claim for benefits, and at the time of the April 2009 denial of service connection for diabetes mellitus. It is likewise asserted most recently, that under Nehmer training, this was a denial of CAD. The above argument from the Veteran's representative was not previously raised, though, in an August 2019 statement in support of the case, the Veteran indicated that he was a Nehmer class Veteran, and that is the reason he was entitled to an earlier effective date. However, in the November 2019 rating decision on appeal, the RO did not address the Veteran's Nehmer claims, and the RO's failure to consider Nehmer constitutes a pre-decisional duty to assist error. In view of that the Board concludes that initial consideration and readjudication by the Agency of Original Jurisdiction (AOJ) of the facts of the case, and the provisions applicable to AOJ determinations is required. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate the Veteran's complete personnel records, to include any records of the Veteran participating in Operation Frequent Wind, by contacting the Veteran's unit(s), National Personnel Records Center, DPRIS, or any other appropriate entity to obtain all service personnel from all periods of the Veteran's service. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Finally, readjudicate the Veteran's claims on appeal. The RO should undertake review of the instant claims with initial consideration of the arguments and positions advanced most recently by the Veteran's representative. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.