As we have previously blogged about, there are special rules for effective dates of award that may apply to veterans with service in Vietnam (colloquially referred to as “boots on ground”) for presumptive conditions related to Agent Orange listed under 38 C.F.R. § 3.309(e). The rules are encompassed within 38 C.F.R. § 3.816 (regulation concerning effective dates of award under the Nehmer class action orders). The Department of Veterans Affairs published a guide for VA field personnel in 2011 which can be accessed at the following link, Nehmer Training Guide.
Over the past year, we’ve received a multitude of favorable decisions regarding effective dates of award under 38 C.F.R. § 3.816. A recent decision gives me opportunity to explain Nehmer, as applied to particular facts. It this case, it resulted in an earlier effective date award to 1984 (period of further entitlement from 1984 to 1996). The facts are as such: (1) Vietnam veteran had early-onset coronary artery disease (CAD); (2) veteran had applied for compensation for conditions unrelated to his heart in 1984; and (3) veteran later successfully established service connection for CAD after many years of adjudication with an effective date of award of 1996. Pursuant to another appeal, the VA conceded an effective date of award back to 1984 because — although not a specific claimed condition in 1984 — medical evidence available in the C-File in 1984 affirmatively established a diagnosis of ischemic heart disease during the adjudication of that prior claim. The legal predicate for this award is best explained in the aforementioned Nehmer Training Guide (Revised): “it is not the case that medical records alone constitute a claim for Nehmer purposes. However, it is a rule that if, at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now-covered condition (e.g., IHD) then the condition is considered to have been part of the previously denied claim. . . . This rule results from footnote 1 of the Nehmer stipulation. . . .”
While we successfully resolved the effective date of award issue, this is not necessarily the end of the adjudication process. Commonly, because the veteran did not specifically claim the condition, the medical evidence in the C-File does not often contain the operative information to ascertain the level of disability for particular periods of time. In the case above, the veteran’s C-File does contain his heart treatment records; however, the effective date of award now pre-dates the now-existing regulations governing heart disease. See 62 Fed. Reg. 65,207 -08 (Dec. 11, 1997); codified at 38 C.F.R. § 4.104 (DCs 7000 to 7123). Accordingly, we’ll now need to evaluated the veteran’s level of disability between 1984 and 1996 under the then-existing DC 7005 to assess whether further appeal is needed. This is referred to commonly as “downstream” issues.
To quote the immortal Bruce, “I feel like I’m a rider on a down[stream] train.” *** I would like some latitude with the bad joke because its not that easy to find a pertinent song lyric to a Springsteen album from 1984. ***