Veteranclaims’s Blog

April 13, 2020

Single Judge Application; Nehmer class member; 38 C.F.R. § 3.816 (2019); veterans are not medical experts, they are generally not expected to provide a precise medical diagnosis when filing a claim for benefits. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). A veteran may identify a condition in a claim simply “by referring to a body part or system that is disabled or by describing symptoms of the disability.” DeLisio, 25 Vet.App. at 53 (internal quotation marks omitted);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-2864
CLAUDIA WATSON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Claudia Watson appeals through counsel an April 9, 2019, Board of
Veterans’ Appeals (Board) decision that denied her retroactive benefits for her late husband’s
coronary artery disease, claimed as a result of herbicide exposure. This appeal is timely and the
Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is appropriate as the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.” Frankel v. Derwinski, 1Vet.App. 23, 25-26 (1990). For the reasons
that follow, the Court will vacate the Board’s April 9, 2019, decision and remand the matter for
readjudication consistent with this decision.
I. FACTS
Roger Watson served on active duty in the U.S. Army from September 1963 to September
1992, including service in Vietnam from September 1965 to September 1966. Record (R.) at 301,
320.
In September 1993, Mr. Watson filed a claim for VA benefits for several problems,
including “heart Jan 76,” “Agent Orange Mar 1968,” “hearing loss (flying and gunfire) Jan 1976,
ulcer stomach June 1997, hernia-upper stomach Jun 1991, gum disease Feb 1988, gastric tear Feb
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1983, eyes Jan 1990,” and “cyst Sep 89.” R. at 317-23. He also listed “[h]eart irregularity Jan 1976”
and “[s]inus [b]radycardia [f]light [p]hyiscal” under conditions for which he had received
treatment while in service. R. at 321.
At a January 1994 VA examination, the examiner noted that Mr. Watson’s only heart
condition was bradycardia, or slow heartbeat. R. at 803. The examiner stated that there was no
evidence of cardiac disease. Id. In September 1994, a VA regional office (RO) denied VA benefits
for a heart condition based on its finding that there was “no ratable cardiovascular condition []
diagnosed in service and none [] noted on VA exam.” R. at 487. The RO stated that “sinus
bradycardia is not a disability under the law in the absence of any diagnosed cardiac condition.”
Id. The RO also denied benefits for Agent Orange exposure because it found that Mr. Watson had
not claimed any specific disability related to Agent Orange, noting that “[m]ere exposure alone is
not a disability under the law.” Id. Mr. Watson did not appeal this decision and it became final.
In April 1998, Mr. Watson was diagnosed with coronary artery disease. R. at 325. Mr.
Watson died of coronary artery disease and acute myocardial infarction on December 26, 2014. R.
at 333. Mrs. Watson filed a claim dependency and indemnity compensation, death pension, and/or
accrued benefits in February 2015. R. at 375-79. In April 2015, the RO granted her VA benefits
for the cause of her husband’s death, stating that coronary artery disease is one of the conditions
granted the presumption of service connection based on exposure to Agent Orange, to which Mr.
Watson was presumed to be exposed during his service in Vietnam. R. at 356-60.
In January 2016, Mrs. Watson filed a claim seeking VA compensation dating back to the
date of her husband’s original September 1993 claim. R. at 335-38. The RO treated this letter as a
“claim” for accrued benefits, which it denied, stating that VA did not owe Mr. Watson any money
at the time of his death. R. at 179-80. In September 2017, Mrs. Watson filed a Notice of
Disagreement, arguing that she is entitled to an effective date of September 1993 based on her
husband’s coronary artery disease. R. at 168-69. She later submitted several letters from
cardiologists opining that Mr. Watson’s coronary artery disease likely began years before his 1993
claim and 1998 diagnosis, but that the condition was not detectable until 1998. R. at 90-95.
On April 9, 2019, the Board issued the decision on appeal. The Board acknowledged that
Mr. Watson served in Vietnam, filed a claim for VA benefits for a heart condition in 1993, which
was denied in 1994, and that he was diagnosed with coronary artery disease in 1998, which is
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entitled to presumptive service connection based on exposure to herbicides in Vietnam. The Board
stated that “the question for the Board is, did VA issue a decision between May 3, 1989, and
August 31, 2010, that denied compensation that reasonably may be construed as the same covered
herbicide agent disease for which compensation has been awarded.” R. at 7. The Board determined
that Mr. Watson’s September 1993 claim and September 1994 denial were not for coronary artery
disease, noting that he was not diagnosed with coronary artery disease until 1998. R. at 7-8. The
Board discussed the letters from cardiologists submitted by Ms. Watson, but found that, at the time
of the 1994 denial of Mr. Watson’s claim, he did not have a cardiac disability.
On appeal, Mrs. Watson argues that Mr. Watson’s 1993 claim for benefits for a “heart”
condition was sufficient to be considered a claim for coronary artery disease. She states that he
identified Agent Orange as part of his claim and that the evidence at that time showed that he had
“some type of heart-related condition(s) while in service.” Appellant’s Brief (Br.) at 16 (emphasis
removed). She further argues that the January 1994 VA examiner’s opinion was not adequately
supported and, thus, the Board erred by relying on that examination. She argues that the Court
should reverse the Board’s decision and award an effective date based on the date of Mr. Watson’s
original claim because the evidence shows that Mr. Watson had asymptomatic coronary artery
disease at the time he left military service and that the 1994 denial of his claim included a denial
of benefits for coronary artery disease.
In response, the Secretary argues that Mr. Watson’s 1993 claim cannot reasonably be
viewed as a claim for VA benefits for coronary artery disease. The Secretary argues that Mr.
Watson was diagnosed only with bradycardia at that time and that his coronary artery disease did
not manifest until 1998. The Secretary states that the Board considered the cardiologists’ opinions
submitted by Mrs. Watson and that these opinions support the Board’s finding that Mr. Watson’s
coronary artery disease was undetectable before 1998 and, thus, did not manifest until that time.
The Secretary argues that the 1994 denial of Mr. Watson’s claim in no way denied VA benefits for
coronary artery disease.
II. ANALYSIS
Ordinarily, the effective date for the award of service connection cannot be earlier than the
date VA received the claim resulting in that award. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2019).
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However, in accordance with Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989), which requires the payment of retroactive benefits to certain veterans, VA codified an exception to this general rule in 38 C.F.R. § 3.816 (2019). Under this regulation, the effective date of a veteran’s claim for a “covered herbicide disease” depends on whether (1) VA denied the claim
for the covered herbicide disease between September 25, 1985, and May 3, 1989, or (2) the claim was pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for the condition. 38 C.F.R. § 3.816(c)(1), (2). If a veteran is designated a “Nehmer class member” with a covered herbicide disease, then “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.” 38 C.F.R. § 3.816(c)(2).
A Board determination of the proper effective date is a finding of fact that the Court reviews
under the “clearly erroneous” standard set forth in 38 U.S.C. § 7261(a)(4). See Evans v. West, 12
Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App. 29, 32 (1996). A determination is clearly
erroneous when the Court, after reviewing the entire evidence, “‘is left with the definite and firm
conviction that a mistake has been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Additionally, the Board
must include a written statement of reasons or bases for its findings and conclusions on all material
issues of fact and law; this statement must be adequate to enable the appellant to understand the
precise basis for the Board’s decision and to facilitate informed review by this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
The Board acknowledged that Mr. Watson was a Vietnam veteran who was exposed to
herbicides and diagnosed with a disease entitled to the presumption of service connection based on that exposure. Thus, the only issue for the Board was whether VA had denied a claim for VA benefits for coronary artery disease between May 3, 1989, and August 31, 2010, the effective date of the law establishing a presumption of service connection for that condition. The Board stated
that Mr. Watson was not diagnosed with coronary heart disease, or any other cardiac condition, at
the time of his 1993 claim and its 1994 denial. Therefore, the Board concluded that his 1993 claim
cannot be considered a claim for benefits for coronary artery disease. The Board discussed the
recent medical opinions submitted by Ms. Watson but found them less probative because they
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were submitted in conjunction with a claim for benefits and were contradicted by the
contemporaneous medical evidence, noting that Mr. Watson denied having heart problems in 1993.
Mrs. Watson argues that Mr. Watson’s 1993 claim for benefits for a “heart” condition was
sufficient to be considered a claim for coronary artery disease. She also argues that the Board’s
reasons or bases are inadequate because the Board ignored autopsy evidence that Mr. Watson had
coronary artery disease when he was discharged from service and failed to adequately consider the
medical opinions that his condition begin before his 1993 claim for benefits.
A claim for VA disability benefits generally requires an intent to seek benefits expressed
in writing that identifies the particular benefits sought.” DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011). However, recognizing that veterans are not medical experts, they are generally not expected to provide a precise medical diagnosis when filing a claim for benefits. Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). A veteran may identify a condition in a claim simply “by referring to a body part or system that is disabled or by describing symptoms of the disability.” DeLisio, 25 Vet.App. at 53 (internal quotation marks omitted). Further, in the context of Nehmer
claims, “an effective date should not be assigned mechanically based on the date of diagnosis” but,
rather, “all of the facts should be examined to determine the date” evidence of symptoms for a
condition “first manifested.” DeLisio, 25 Vet.App. at 58-59.
The Board’s reasons or bases for denying Mrs. Watson’s claim are not adequate. Here, there
is evidence that Mr. Watson experienced some heart condition during service. However, the Board
failed to discuss this favorable evidence, instead noting that he denied having any heart problems
on a 1993 dental record. Curiously, the Board failed to reconcile that evidence with Mr. Watson’s
actual 1993 claim, stating that he had a heart condition. Further, the Board rejected the multiple
favorable medical opinions that Mr. Watson’s coronary artery disease likely began during his
service in part because they were sought “in conjunction with a claim for retroactive benefits.” R.
at 8. While the Board was certainly free to discount favorable evidence if it believed that evidence
lacked probative value, it must provide a sufficient basis for doing so. See Owens v. Brown, 7
Vet.App. 429, 433 (1995) (“It is the responsibility of the [Board] . . . to assess the credibility and
weight to be given to evidence.”). Here, the Board failed to explain why simply being sought
during a claim rendered the favorable private medical opinions less probative. See Thompson v.
Gober, 14 Vet.App. 187, 188 (2000) (Board must provide an adequate statement of reasons or
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bases “for its rejection of any material evidence favorable to the claimant”). Additionally, contrary
to the Board’s terse statement, the favorable medical opinions are not necessarily contradicted by
the evidence in the record at the time of the 1994 denial of Mr. Watson’s claims. The opinions
suggest that his condition was present, but may have not been detectable at that time, which would
appear to align with the contemporaneous evidence.
Because the Board failed to provide an adequate statement of reasons or bases for its
rejection of evidence that Mr. Watson’s 1993 claim for VA benefits for a heart condition included
coronary artery disease, remand is appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(“[W]here the Board has incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is
the appropriate remedy.”).
Given this disposition, the Court will not address Mrs. Watson’s other arguments. See Best
v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[a] narrow decision
preserves for the appellant an opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the Board rule against him”).
On remand, she is free to submit additional evidence and argument on the remanded matters, and
the Board is required to consider any such relevant evidence and argument. See Kay v. Principi,
16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence
and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical
examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the April 9, 2019, Board decision is VACATED and the matter is
REMANDED for further proceedings consistent with this decision.
DATED: April 9, 2020
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Copies to:
Douglas J. Rosinski, Esq.
VA General Counsel (027)

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