Case A26040214

THOMAS L. ENGLISH · 2026 · Case ID: A26040214

DENIED

Summary

The veteran, who served in the Navy from July 1962 to July 1965 and again from January 1970 to December 1971, including combat service in Vietnam and receiving the Navy Achievement Medal with Combat "V" device, appeals the denial of an earlier effective date for his service-connected ischemic heart disease and atrial fibrillation status post-bypass. The veteran sought an effective date of July 1, 2005, arguing that since he received retroactive benefits for hypothyroidism as a Nehmer class member with an effective date of June 9, 2005, and VA acknowledged his Agent Orange exposure, an earlier date should apply to his heart condition. The Board noted that ischemic heart disease was added to the list of presumptive herbicide diseases effective August 31, 2010. While the veteran is a Nehmer class member, the Board found no evidence of a diagnosis of ischemic heart disease prior to August 31, 2010, or any claim filed for a heart condition between September 25, 1985, and August 31, 2010. The initial claim for ischemic heart disease was filed on June 22, 2022, and service connection was granted in October 2022 based on presumptive herbicide exposure. The Board concluded that without a claim filed within the applicable Nehmer timeframe for heart disease, it lacked the legal authority to grant an effective date prior to June 22, 2022. Therefore, the appeal for an earlier effective date was denied.

Rationale

No claim for heart condition filed within applicable Nehmer timeframe (Sept 25, 1985 - Aug 31, 2010); Ischemic heart disease added to presumptive list Aug 31, 2010; No evidence of diagnosis prior to Aug 31, 2010

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230302-586990

Full Decision Text

Citation Nr: A26040214
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 230302-586990
DATE: April 29, 2026

ORDER

An effective date earlier than June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass is denied.

FINDINGS OF FACT

1. The Veteran is a Nehmer class member.

2. The Veteran was first diagnosed with ischemic heart disease and atrial fibrillation status post-bypass in 2022.

3. The Veteran's initial service connection claim for ischemic heart disease and atrial fibrillation status post-bypass was received on June 22, 2022.

4. No formal or informal claim for service connection for ischemic heart disease and atrial fibrillation status post-bypass was received prior to June 22, 2022.

CONCLUSION OF LAW

The criteria for an earlier effective date prior to June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass have not been met. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.816 (c)(2).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active-duty service from July 1962 to July 1965 and January 1970 to December 1971, including combat service in the Republic of Vietnam, and his decorations include the Navy Achievement Medal with Combat "V" device.

The issue comes before the Board of Veterans' Appeals (Board) on appeal from a February 2023 Department of Veterans Affairs (VA) Regional Office (RO) rating decision.

The Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in March 2023 and chose the option for a hearing with a Veterans Law Judge.

The Veteran testified before the Board in January 2026. A transcript of the hearing was added to the claims file.

An effective date earlier than June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass is denied.

The Veteran seeks an earlier effective date prior to June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass. See March 2025 VA Form 10182 Notice of Disagreement. The Veteran asserts that an effective date of July 1, 2005, is warranted. Specifically, the Veteran states since service connection for hypothyroidism was granted effective June 9, 2005, an earlier effective date should also be granted from 2005 for his service-connected heart condition because VA acknowledged he had exposure to Agent Orange. See March 2023 VA Form 10182 Notice of Disagreement; see also January 2026 Hearing Transcript.

The Veteran's initial application for service connection for ischemic heart disease was signed on June 21, 2022, and received on June 22, 2022. See June 22, 2022, VA 21-526EZ, Fully Developed Claim. Service connection was granted in October 2022, pursuant to the presumption due to herbicide exposure. 38 C.F.R. § 3.307; 38 C.F.R. § 3.309.

The assignment of effective dates is generally governed by 38 U.S.C. § 5110. Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose if the claim is received within one year after discharge from service. 38 C.F.R. § 3.400. Otherwise, for an award based on an original claim, a claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

A special regulation governing effective dates for certain Vietnam veterans was enacted in response to the class action lawsuit Nehmer v. United States Veterans Administration. See 38 C.F.R. § 3.816; Nehmer v. U.S. VA, 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. U.S. VA, 32 F. Supp. 2d 1175 (N.D. Cal. 1999); Nehmer v. VA. of the Gov't of the U.S., 284 F.3d 1158 (9th Cir. 2002). Under this regulation, the Veteran is considered to be a "Nehmer class member" because he is a Vietnam veteran who has a covered herbicide disease, namely ischemic heart disease. See 38 C.F.R. §§ 3.309 (e), 3.3816 (b). For Nehmer class members, if a service connection claim for a covered herbicide disease was received between May 3, 1989, and the effective date of the law or regulation establishing presumptive service connection, then the effective date of the award will be the later of (1) the date of claim or (2) the date the disability arose. 38 C.F.R. § 3.816 (c).

A regulatory change effective August 31, 2010, added ischemic heart disease to the list of diseases subject to presumptive service connection due to herbicide exposure. 75 Fed. Reg. 53202 (2010); 38 C.F.R. § 3.309 (e). Thus, ischemic heart disease was added as a disease warranting presumptive service connection based on Agent Orange exposure, effective August 31, 2010. Therefore, in accordance with Nehmer, VA was required to readjudicate previously denied claims for, among other things, ischemic heart disease filed by Nehmer class members if a claim for such had been filed or denied between September 25, 1985, to August 31, 2010. However, in this case, the record does not reflect that such a claim was filed by the Veteran during that period of time.

The evidentiary record does not show heart disease to include any form of ischemic heart disease prior to the date it was added to the list of diseases presumed to be associated with herbicide agent exposure (i.e., August 31, 2010). Therefore, the Board finds, although retroactive benefits under the Nehmer Court Order may be payable if there is evidence of a disability received during a timeframe beginning with the Nehmer review period on September 25, 1985, and ending with the effective date of the regulation that linked presumptively ischemic heart disease with Agent Orange exposure, which is August 31, 2010, here, there is no evidence showing a diagnosis of ischemic heart disease during the applicable timeframe. An October 2022 Heart Conditions Disability Benefits Questionnaire indicates a diagnosis date of 2022.

The Board acknowledges the Veteran's arguments that since he was awarded retroactive benefits for hypothyroidism (Nehmer granted), he should be awarded retroactive benefits for his service-connected heart condition or with an effective date prior to June 22, 2022. However, the difference with his service-connected heart condition is no claim was filed within the applicable timeframe for Nehmer class members (i.e., September 25, 1985, to August 31, 2010). A November 2021 rating decision granted service connection for hypothyroidism with an effective date of June 9, 2005, which is the earliest date a claim for Nehmer purposes was received in VA for hypothyroidism. A review of the Veteran's claim file does not show a formal or informal claim for service connection of a heart condition was received prior to June 22, 2022.

The Board is sympathetic to the Veteran's efforts to establish presumptive Agent Orange exposure for ischemic heart disease prior to June 22, 2022; however, the Board is without discretion in this matter and must predicate its determination on the basis of applicable laws and regulations. Simply put, the Board is without legal authority to grant an effective date prior to June 22, 2022, for the grant of service connection for ischemic heart disease.

Accordingly, entitlement to an effective date prior to June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass must be denied.

a heart condition was received prior to June 22, 2022.

Accordingly, entitlement to an effective date prior to June 22, 2022, for the grant of service connection for ischemic heart disease and atrial fibrillation status post-bypass must be denied.

Thomas L. English

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Buck Denton

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.

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