Veteranclaims’s Blog

November 9, 2021

Single Judge Application; Nehmer Training Guide; VA Training Letter 10-04; Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989);; exposure to herbicides in Vietnam; 38 C.F.R. § 3.816; CAD;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-7173
MARSHALL D. CLOUD, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Air Force veteran Marshall D. Cloud, through counsel, appeals a
September 19, 2019, Board of Veterans’ Appeal decision that denied an earlier effective date for
an award of service connection for coronary artery disease (CAD) with cardiomyopathy, implanted
cardiac pacemaker, and implanted automatic implantable cardioverter status post myocardial
infarction. The appeal is timely; the Court has jurisdiction to review the Board decision; and singlejudge
disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board gave an adequate statement of reasons or bases
about substantial compliance with the parties’ joint motion for partial remand (JMPR), which
required an analysis under the Nehmer Training Guide. Because the Board conducted an improper
analysis of the Nehmer Training Guide, it did not give an adequate statement of reasons or bases,
and thus we will remand the matter.
I. FACTS
Mr. Cloud served on active duty from December 1965 to September 1969. Record (R.) at

  1. He served in the Republic of Vietnam from October 1968 to September 1969. R. at 1408.
    2
    In November 2004, Mr. Cloud filed an informal claim for VA benefits based on hearing
    loss, tinnitus, and a knee condition. R. at 1744. He filed a formal claim for benefits for those
    conditions in December 2004. R. at 1728-38. He reported that he was exposed to Agent Orange
    and other herbicides in Vietnam, but said he did not know of a disability related to that exposure.
    R. at 1735. In July 2005, the regional office (RO) granted service connection for the three
    conditions. R. at 1687-90.
    While his claims were pending and afterwards, Mr. Cloud was undergoing treatment at VA
    for CAD. A March 2005 VA clinical note shows that Mr. Cloud experienced a myocardial
    infarction (heart attack)1 in September 2003 and discussed CAD medication. R. at 1611. Later VA
    medical records show continued treatment for CAD. R. at 1581 (March 2011 Agent Orange
    program consult), 1589 (January 2011 VA internal medicine note), 1597 (March 2010 VA internal
    medicine note), 1600 (June 2009 VA internal medicine note), 1603 (September 2006 VA internal
    medicine note).
    In March 2011, Mr. Cloud filed a claim for benefits based on ischemic heart disease (IHD)
    due to Agent Orange exposure. R. at 1649. An April 2011 VA examination noted a diagnosis of
    IHD/CAD and noted the past heart attack. R. at 1446.
    In July 2011, the RO made a preliminary finding for service connection for CAD, claimed
    as IHD, based on a presumption of herbicide exposure in Vietnam, with a 30% rating, with an
    effective date of August 31, 2010. R. at 1407. In November 2012, the RO made a final decision
    confirming the award of service connection for CAD. R. at 1363-64. The effective date remained
    August 31, 2010, because that was the date IHD (to include CAD) was added to the list of
    conditions with presumptive service connection based on conceded herbicide exposure in
    Vietnam. R. at 1364.
    Mr. Cloud filed a Notice of Disagreement (NOD) in October 2013, choosing direct review.
    R. at 1194. In September 2015, a direct review officer increased Mr. Cloud’s CAD rating to 100%,
    but kept the effective date the same, again based on the date that condition was given presumptive
    service connection. R. at 795-97. That same month, the RO issued its Statement of the Case (SOC)
    that denied an earlier effective date for CAD, R. at 750-77, and Mr. Cloud perfected his appeal, R.
    at 703-04.
    1 See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 174 (33d ed. 2020).
    3
    In January 2018, the RO issued another SOC, noting that service connection for CAD could
    not have an effective date earlier than August 31, 2010, as that was the date that the regulations
    added IHD/CAD to the list of conditions with presumptive service connection. R. at 513-49.
    In August 2018, the Board denied an effective date earlier than August 31, 2010, because
    Mr. Cloud did not file a claim based on CAD until March 2011. R. at 503-04.
    In May 2019, the parties filed a JMPR that the Court granted a month later. R. at 282-89
    In the JMPR, the parties agreed that the Board “failed to provide proper consideration as to whether
    under Nehmer or VA Training Letter 10-04 [hereinafter Training Guide] his date of claim for
    [CAD] was December 2004.” R. at 284. The Board had failed to note the evidence that Mr. Cloud
    had a diagnosis of CAD as early as March 2005, while his other claims were pending before VA,
    which under Nehmer and the Training Guide could warrant an earlier effective date for CAD. R.
    at 285. Thus, the Board had to readjudicate the CAD claim Id.
    In September 2019, the Board again denied an effective date earlier than August 31, 2010,
    for Mr. Cloud’s CAD. R. at 5. The Board concluded that it was not bound by the Training Guide.
    R. at 9. The Board deemed the Training Guide to have been incorporated in the VA Adjudication
    Procedures Manual (M21-1) and noted that the M21-1 is not binding on the Board. Id. The Board
    thus decided the matter based on 38 C.F.R. § 3.816, which the Board found did not allow VA
    under Nehmer to construe a claim for benefits as including a claim for any condition mentioned in
    medical records associated with that claim, if there was no express claim for that condition. R. at
    9-10. The Board also determined that, even if the Training Guide applied, a claim for CAD could
    not be included with Mr. Cloud’s December 2004 claim for benefits because he did not submit the
    medical records showing a CAD diagnosis to VA until his later claim in 2011. R. at 10-11. This
    appeal followed.
    II. ANALYSIS
    A. Effective Dates under Nehmer
    Generally, the effective date of an award may not be earlier than the date of VA’s receipt
    of the initial claim for benefits. 38 U.S.C. § 5110(a). But Nehmer v. U.S. Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989), established exceptions to this rule for veterans with presumptively service-connected conditions based on conceded exposure to herbicides in Vietnam. VA codified this exception at 38 C.F.R. § 3.816, which establishes that, if a Nehmer
    4
    class member’s claim for disability compensation for a covered herbicide disease “was received by VA between [May 3, 1989]2 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.” § 3.816(c)(2)
    (2021). IHD, including CAD, is a condition subject to presumptive service connection based on
    presumed herbicide exposure during service in Vietnam. 38 C.F.R. § 3.309(e) (2021). IHD/CAD
    was added to the regulation effective August 31, 2010. See 75 Fed. Reg. 53,202, 53,216 (Aug. 31,
    2010).
    VA issued a guide for how to adjudicate claims under Nehmer and the implementing
    regulations, including § 3.816. Training Guide at 9-10 (Feb. 10, 2011) (revised). The guide stated
    that its purpose was “to provide users with the information necessary to review, develop, rate, and
    authorize Nehmer claims for . . . the new presumptive conditions [including] IHD.” Id. at 8. The
    guide establishes that,
    if [VA has] such medical records [showing a diagnosis of an herbicide-related
    disease] at the time we receive a separate [service-connection] claim, then the
    condition shown by the medical records is part of that claim. Accordingly, for
    effective-date purposes, they should be considered part of whatever claim was the
    subject of the rating decision.
    Id. at 19-20. Thus, if there were medical records showing a CAD diagnosis that were before VA
    when a veteran made claims for other conditions, then VA must find that a claim for CAD was
    made alongside those other claims, and the effective date of service connection for CAD will be
    the same as the effective dates for those other claims—even though IHD/CAD was not added to
    the list of conditions for which service connection is presumed based on herbicide exposure until
    after those other claims were filed.
    B. Compliance with the JMPR
    A remand by this Court confers on a claimant the right to compliance with the remand
    order. Stegall v. West, 11 Vet.App. 268, 271 (1998). Substantial, rather than strict, compliance
    satisfies this right. D’Aries v. Peake, 22 Vet.App. 97, 105 (2008); Dyment v. West, 13 Vet.App.
    141, 147 (1999), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).
    2 The date of the district court’s decision in Nehmer.
    5
    Here, the Secretary has conceded that the Board’s analysis according to the Training Guide
    was flawed because it did not consider that VA medical records showing Mr. Cloud’s CAD
    diagnosis were constructively before the RO when it adjudicated his December 2004 claims.
    Secretary’s Br. at 19. This directly violated the terms of the JMPR, which found that the Board
    erred because it “failed to properly discuss the relevant evidence indicating a documented
    diagnosis of coronary artery disease as early as March 2005.” R. at 285. The JMPR required VA
    to consider those documents and “to provide proper consideration as to whether under Nehmer and
    [the Training Guide] his date of claim for [CAD] was December 2004.” R. at 284. Thus, VA’s
    failure to conduct a proper analysis under the Training Guide means that it failed to substantially
    comply with the terms of the JMPR. See D’Aries, 22 Vet.App. at105; Dyment, 13 Vet.App. at 147;
    Stegall, 11 Vet.App. at 271.
    The Secretary, though, maintains that this was harmless error because the Training Guide
    is not legally binding and thus the Board was free to disregard its provisions altogether. Secretary’s
    Br. at 19-20 (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (noting that the party that “seeks
    to have a judgment set aside because of an erroneous ruling carries the burden of showing that
    prejudice resulted”)).
    C. Reasons or Bases Error
    But even if the Training Guide is not legally binding, the Board was not free to disregard
    its provisions without providing a proper statement of reasons or bases. “[T]he Board must support
    its substantial compliance determination with an adequate statement of reasons or bases that
    enables the claimant to understand the precise basis for that finding and facilitates review in this
    Court.” Mathews v. McDonald, 28 Vet.App. 309, 315 (2016) (citing Gilbert v. Derwinski,
    1 Vet.App. 49, 57 (1990) (holding that the Board must “articulate with reasonable clarity its
    ‘reasons or bases’ for decisions” that enable the claimant to understand the decision and facilitate
    judicial review)); see also Sharp v. Shulkin, 29 Vet.App. 26, 33 (2017) (holding that an inadequate
    statement of reason or bases does not ensure substantial compliance with a remand).
    Even nonbinding guidance, like the M21-1, must be considered if the Board’s statement of
    reasons or bases is to be adequate. See Overton v. Wilkie, 30 Vet.App. 257, 264 (2018); see also
    Healey v. McDonough, 33 Vet.App. 312, 320 (2021) (“Notwithstanding its non-binding nature, an
    agency cannot simply ignore an internal guidance manual when its contents relate to a particular
    claim or disability.”). The M21-1 consists of “administrative directions to the field containing
    6
    guidance as to the procedures to be used in the adjudication process ” Dyment, 13 Vet.App. at 146.
    Even considered apart from the M21-1,3 the Training Guide is still similar to that document as the
    guide also provides administrative guidance for deciding claims. See Training Guide at 8. Thus,
    even apart from the JMPR, the Board needed to discuss the Training Guide as informative
    administrative guidance to provide adequate reasons or bases for its decision. See Healey, 33
    Vet.App. at 32; Overton, 30 Vet.App. at 264. This Court has, in nonprecedential cases, treated a
    failure to discuss the provisions of the Nehmer Training Guide as constituting a reason or bases
    error warranting remand, just as it would a failure to consider relevant provisions of the M21-1.
    See, e.g., Stanley v. McDonald, No. 14-1328, 2015 WL 1757661, at *5 (Vet. App. Apr. 20, 2015).
    Although the Board discussed the Training Guide, its failure to consider favorable evidence
    rendered that discussion, and thus the Board’s statement of reason or bases, inadequate. The
    overlooked 2005 medical records, when considered as part of the analysis under the Training
    Guide, would constitute favorable evidence. See Allday v. Brown, 7 Vet.App. 517, 527 (1995)
    (holding that an adequate statement of reasons or bases must “provide the reasons for its rejection
    of any material evidence favorable to the veteran”). VA medical records from 2005 show that Mr.
    Cloud had CAD. R. at 1611. This was after he had submitted claims based on three other conditions
    and before the RO decided those claims. See R. at 1687-90, 1728-38. As these were VA medical
    records, the parties do not dispute that they were constructively before the Board at that time. See
    Appellant’s Br. at 15; Secretary’s Br. at 19; see also Bell v. Derwinski, 2 Vet.App. 611, 613 (1992).
    According to the Training Guide, this meant that VA could construe Mr. Cloud’s December 2004
    claims as including a claim based on CAD. See Training Guide at 19-20. This could allow an
    effective date for CAD earlier than August 31, 2010, when that condition was added to the list of
    presumptively service-connected conditions based on herbicide exposure. See § 3.816(c)(2); 75
    Fed. Reg. at 53,216.
    Because the Board did not conduct such an analysis under the Training Guide, this Court
    is precluded from definitively saying that the result would support an earlier effective date for
    CAD in Mr. Cloud’s case. See Tadlock v. McDonough, 5 F.4th 1327, 1335 (Fed. Cir. 2021)
    (holding that this Court cannot make findings of fact in the first instance in the context of harmless
    error analysis). But because, as the parties agree, the medical evidence is favorable to the veteran,
    3 For which reason we need not determine whether the Board was correct when it said that the Training Guide
    was incorporated into the M21-1 by reference. See R. at 9.
    7
    we can say that if the Board were to consider that overlooked evidence and so properly consider
    the Training Guide, that in turn could lead to a different outcome, beneficial to Mr. Cloud.
    This is not a situation like that in Soyini v. Derwinski, where this Court determined that a
    remand would bring no benefit to the veteran. 1 Vet.App. 540, 546 (1991). The Board had to
    consider the Training Guide and to properly consider it the Board had to consider the 2005 medical
    records of CAD. This was required by the JMPR, R. at 284-95, and the Board’s obligation to
    consider relevant provisions in VA material like the Training Guide, see Healey, 33 Vet.App. at
    32; Overton, 30 Vet.App. at 264. Thus, the Board failed to render an adequate statement of reasons
    or bases and, as with the M21-1, such an error warrants remand even if the Training Guide is
    nonbinding.
    Because we find that the Board made a reasons or bases error regarding the Training Guide,
    even if it were nonbinding, warranting remand, we need not decide whether the Training Guide is
    generally binding on VA. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f
    the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors
    that would result in a remedy no broader than a remand.”).
    But we do consider—and reject—Mr. Cloud’s argument that the Secretary must consider
    the Training Guide binding under the JMPR. See Appellant’s Br. at 9-10. The JMPR explained that
    the Board’s 2018 decision erred because it “failed to provide proper consideration as to whether”
    an earlier effective date was warranted under Nehmer and the Training Guide, and “failed to
    properly discuss the” 2005 VA medical records showing a CAD diagnosis. R. at 284-85. The
    JMPR required the Board to “specifically review the impact of [Mr. Cloud’s] December 2004
    claim” for other conditions given his March 2005 VA diagnosis of CAD. R. at 285. This language
    required that the Training Guide be considered, not that it be followed or applied. The 2018 Board
    decision failed to discuss the Training Guide at all, not even to say that it did not apply. See R. at
    502-04. The JMPR remedied that error; it did not bind the Board to the provisions of the Training
    Guide. Further, the JMPR provided, “The Secretary further notes that any statements made herein
    shall not be construed as statements of policy or the interpretation of any statute, regulation, or
    policy by the Secretary.” R. at 286. Given this language, the Secretary could not have been
    conceding in the JMPR that the Training Guide was a binding interpretation of Nehmer and
    § 3.816(c)(2). Thus, we find that Mr. Cloud’s argument that the JMPR bound the Secretary to
    follow the Training Guide to be unpersuasive. See Hilkert v. West, 12 Vet.App. 145, 151 (1999)
    8
    (holding that the appellant has the burden of showing error), aff’d per curiam, 232 F.3d 908 (Fed.
    Cir. 2000) (table).
    Because the Board provided an inadequate statement of reasons or bases, remand is
    appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998). Because Mr. Cloud’s other
    arguments would warrant no greater remedy than a remand, we need not address them. See Mahl,
    15 Vet.App. at 38; see also Best v. Principi, 15 Vet.App. 18, 19 (2001). Generally, the veteran is
    free on remand to submit additional evidence and argument, including those raised in his briefs,
    and he has 90 days from the date of the postremand notice VA provides to do so. See
    Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark v.
    O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such evidence or argument
    submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also 38 U.S.C. § 7112 (a remand
    must be performed in an expeditious manner); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)
    (“A remand is meant to entail a critical examination of the justification for the decision.”).
    III. CONCLUSION
    On consideration of the above, the September 19, 2019, Board decision that denied an
    earlier effective date for the award of service connection for CAD is SET ASIDE, and the case is
    REMANDED.
    DATED: November 5, 2021
    Copies to:
    Todd M. Wesche, Esq.
    VA General Counsel (027)

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