Citation Nr: 0604813	
Decision Date: 02/21/06    Archive Date: 02/28/06

DOCKET NO.  03-22 467	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUE

Entitlement to an earlier effective date before January 12, 
1998 for a 100 percent rating for constrictive pericarditis 
with Dressler's syndrome, for purposes of accrued benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and her daughter


ATTORNEY FOR THE BOARD

M. Vavrina, Counsel


INTRODUCTION

The veteran served on active duty from January 1969 to 
January 1971.  He died in December 1998.  The appellant is 
the veteran's surviving spouse.  In a May 1999 rating 
decision, the Department of Veterans Affairs (VA) granted her 
claim for service connection for the cause of veteran's 
death.

During his lifetime, the veteran filed a notice of 
disagreement (NOD) with the initial 60 percent rating 
assigned for constrictive pericarditis with Dressler's 
syndrome, which was assigned, in a November 1996 rating 
decision.  He died before this appeal was completed.

This matter comes before the Board of Veteran's Appeals 
(Board) on appeal from a September 2002 rating decision 
issued in October 2002 by the VA Regional Office (RO) in St. 
Petersburg, Florida, which, in pertinent part, assigned a 100 
percent rating for constrictive pericarditis with Dressler's 
syndrome, effective January 12, 1998, for purposes of accrued 
benefits only.  

In September 2005, the appellant and her daughter testified 
at a Travel Board hearing before the undersigned Veterans Law 
Judge at the RO.  A copy of the transcript is associated with 
the record.

The appellant disagreed with the effective date chosen for 
the 100 percent rating for constrictive pericarditis with 
Dressler's syndrome, indicating, in a March 2003 VA Form 21-
4138, that the effective date should be retroactive to the 
date that the government knew the correlation of Agent Orange 
to Hodgkin's lymphoma.  In that same statement, the appellant 
asserted that when VA finally recognized the veteran's 
disability (Hodgkin's lymphoma and associated disabilities), 
the RO made a clear and unmistakable error (CUE) in not 
granting him a 100 disability rating.  In an April 2003 
letter to the appellant, the RO informed her that a valid CUE 
claim must meet certain criteria and that, in the absence of 
a valid claim, the RO declined to review her claim under the 
provisions of 38 C.F.R. § 3.105(a) (2005).  Thus, this issue 
is not in appellate status and will not be discussed further 
in this decision.


FINDINGS OF FACT

1.  VA amended its regulations to establish presumptive 
service connection for Hodgkin's disease based on exposure to 
herbicides, effective February 3, 1994.

2.  On July 18, 1990, VA received the veteran's request to 
reopen claim his previously denied claim for Hodgkin's 
lymphoma and its residuals.  In a December 1994 rating 
decision, VA awarded service connection for Hodgkin's disease 
on a presumptive basis due to exposure to herbicides and for 
residuals of a splenectomy, assigning initial noncompensable 
and 30 percent ratings, effective February 3, 1994.

3.  On March 7, 1994, VA received the veteran's claim for 
service connection for heart disease claimed as secondary to 
his Hodgkin's lymphoma.  In a November 1996 rating decision, 
VA awarded service connection for constrictive pericarditis 
with Dressler's syndrome (heart disease) as secondary to the 
veteran's service-connected Hodgkin's lymphoma and assigned 
an initial 60 percent rating, effective February 3, 1994.

4.  In May 1997, the veteran filed an NOD with the initial 
rating assigned for his heart disease in a November 1996 
rating action.

5.  At the time of his death, on December [redacted], 1998, his 
increased rating claim was still pending.

6.  In a May 1999 rating decision, VA granted the appellant's 
claim for service connection for the cause of veteran's 
death.

7.  In a September 2002 rating decision, the RO assigned a 
100 percent rating for constrictive pericarditis with 
Dressler's syndrome, effective January 12, 1998, for purposes 
of accrued benefits only.

8.  The evidence of record shows that, before and after March 
7, 1994, the veteran's service-connected heart disease was 
manifested either by dyspnea on slight exertion, angina, and 
other definite signs of congestive heart failure, congestive 
heart failure, or an estimated workload of metabolic 
equivalents (METs) of 1.7.


CONCLUSION OF LAW

The criteria for an effective date of February 3, 1994, for a 
100 percent rating for constrictive pericarditis with 
Dressler's syndrome, for accrued benefits purposes, have been 
met.  38 U.S.C.A. §§ 1155, 5107, 5121 (West 2002 & Supp. 
2005); 38 C.F.R. §§ 3.102, 3.114, 3.1000, 4.1-4.10, 4.104, 
Diagnostic Codes 7000, 7002 (1997, 2005). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper VCAA notice must inform the claimant of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) must ask the claimant to provide any evidence in her or 
his possession that pertains to the claim in accordance with 
38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a 
claimant before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005).  

Initially, the Board notes that the VA General Counsel has 
held that the notice and duty to assist provisions of the 
VCAA are not applicable to a claim, where that claim cannot 
be substantiated because there is no legal basis for the 
claim or because undisputed facts render the claimant 
ineligible for the claimed benefit.  See VAOPGCPREC 5-2004.  
In this case, there is no possibility that any evidence could 
be obtained that would be relevant to the legal question 
involved.  Because this is an accrued benefits claim, the 
decision must be based on the evidence of record already in 
the claims file at the time of the veteran's death.  
Moreover, there is, by law, no additional relevant evidence 
to be obtained with a claim for an earlier effective date 
involving an award of a secondary service connection for 
heart disability based on presumption of service connection 
for Hodgkin's disease due to herbicide exposure, as the 
effective date can be no earlier than the effective date of 
the regulatory change establishing a presumption of service 
connection for Hodgkin's disease due to herbicide exposure, 
if the claim is received within one year from such date.  38 
C.F.R. § 3.114 (2005).  

To the extent that there may be any deficiency of notice or 
assistance, there is no prejudice to the appellant in 
proceeding with the issue of entitlement to an earlier 
effective date for a 100 percent rating, for accrued benefits 
purposes, given the favorable nature of the Board's decision.  
See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); 
Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 
4 Vet. App. 384 (1993).

Analysis

The appellant contends, in essence, that the veteran should 
have been rated 100 percent disabled due to his service-
connected disabilities retroactive to the date that the 
government knew of the correlation of Agent Orange to 
Hodgkin's disease.

At the September 2005 Travel Board hearing, the appellant and 
her daughter testified that the veteran filed his first claim 
in the early 1970s for service connection due to exposure to 
Agent Orange, because she claims he was diagnosed with 
Hodgkin's disease within a year of service; that his 
Hodgkin's disease eventually created the heart condition 
diagnosed in 1992, which prevented him from working and led 
to his demise; and that the veteran stopped working in the 
Spring of 1993.  They also indicated that, when the veteran 
moved from New York to Florida in 1996, he was hospitalized 
within one week; that, during his last year, he had plural 
taps every several months to eliminate fluid in his lungs, 
secondary to congestive failure; and that the veteran was not 
rated 100 percent until after his death, when VA awarded a 
100 percent rating, for accrued benefits purposes, effective 
from January 12, 1998.

Effective Date for Service Connection for Heart Disability, 
for Accrued Benefits Purposes

At the time of his death, the veteran had an ongoing claim 
with regard to entitlement to an initial rating in excess of 
60 percent for his service-connected heart disability, which 
was secondary to his Hodgkin's disease.  When a veteran had a 
claim pending at the time of his death, his surviving spouse 
may be paid periodic monetary benefits to which he was 
entitled at the time of his death, and which were due and 
unpaid for a period not to exceed two years, based on 
existing ratings or decisions or other evidence that was on 
file when he died. 38 U.S.C.A. § 5121 (West 2002 & Supp. 
2005); 38 C.F.R. § 3.1000 (2005); Jones v. West, 136 F.3d 
1296 (Fed. Cir. 1998).  Although the appellant's claim for 
accrued benefits is separate from the claim that the veteran 
appealed prior to his death, the accrued benefits claim is 
"derivative of" the veteran's claim and the appellant takes 
the veteran's claim as it stood on the date of his death.  
Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996).

The Board notes that Congress recently amended 38 U.S.C.A. 
§ 5121 to repeal the two-year limit on accrued benefits so 
that a veteran's survivor may receive the full amount of 
award for accrued benefits.  This change applies only to 
deaths occurring on or after the date of enactment, December 
16, 2003.  Because the veteran died before the date of 
enactment, on December [redacted], 1998, this change does not apply 
in this case and is noted only for information purposes.  See 
Veterans Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 
2651 (2003) (codified at 38 U.S.C. § 5121(a) (West Supp. 
2005)).

Unless specifically provided otherwise, the effective date 
for an award of compensation based on an original claim shall 
be fixed in accordance with the facts found, but shall not be 
earlier than the date of receipt of the application thereof.  
38 U.S.C.A. § 5110(a) (West 2002).  Regulations provide that 
the effective date for compensation will be the date of 
receipt of the claim or date entitlement arose, whichever is 
later.  38 C.F.R. § 3.400 (2005).

In February 1991, the Agent Orange Act of 1991, Public Law 
102-4, 105 Stat. 11 (1991) was enacted.  It added a new 
section (§ 1116) to title 38 of the United States Code 
establishing a scientific-evidence review process for the 
establishment of presumptions of service connection for 
diseases associated with exposure to certain herbicide 
agents.  See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2005).  
Pursuant to 38 U.S.C.A. § 1116, in February 1994, VA 
published notice of a final rule in the Federal Register 
amending 38 C.F.R. § 3.309(e) to allow presumptive service 
connection for Hodgkin's disease with an effective date of 
February 3, 1994.  See 59 Fed. Reg. 5,106-07 (Feb. 3, 1994).  

Where pension, compensation, or dependency and indemnity 
compensation is awarded or increased pursuant to a 
liberalizing VA issue approved by the Secretary or by the 
Secretary's direction, the effective date of such award or 
increase shall be fixed in accordance with the facts found, 
but shall not be earlier than the effective date of the act 
or administrative issue.  38 C.F.R. §§ 3.114(a), 3.400(p) 
(2005).  Ordinarily, under those provisions, awards based on 
presumptions of service connection established under the 
Agent Orange Act of 1991 can be made effective no earlier 
than the date VA issued the regulation authorizing the 
presumption.  An earlier effective date was warranted, 
however, in this case for service connection for Hodgkin's 
disease under the Nehmer II Stipulation and Order because the 
provisions of that Order applied to the veteran's claim.  In 
May 1989, the United States District Court for the Northern 
District of California (district court) voided all denials of 
Agent Orange claims based on the regulations that became 
effective on September 25, 1985.  Nehmer v. United States 
Veterans' Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 
1989) (Nehmer I).  The district court later clarified its 
ruling, holding that the covered claims were those in which 
the disease or cause of death was later found to be service 
connected under valid VA regulations.  Nehmer v. United 
States Veterans' Administration, 32 F. Supp. 2d 1175, 1183 
(N.D. Cal. 1999) (Nehmer II).

In May 1991, the United States government and the plaintiffs 
in the Nehmer litigation entered into a stipulation according 
to which VA would readjudicate claims, the denials of which 
were voided by Nehmer I.  Nehmer v. United States Veterans' 
Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991) 
(Nehmer Stipulation).  The effective date of any resulting 
award of benefits would be based on the filing date of the 
original claim, for claims originally filed before May 3, 
1989 (Stipulation 1), or on the later of the filing date of 
the claim or the date of disability or death of the veteran, 
for claims filed after May 3, 1989 (Stipulation 2).  See 
Williams v. Principi, 310 F.3d 1374, 1375-76 (Fed. Cir. 
2002).

The Nehmer stipulations were later incorporated into a final 
regulation that became effective on September 24, 2003.  See 
68 Fed. Reg. 50,966 (Aug. 25, 2003) (codified at 38 C.F.R. § 
3.816 (2005)).  That regulation defines a "Nehmer class 
member" to include a Vietnam veteran who had covered 
herbicide disease, to include Hodgkin's disease.  Id. at 
50,970.  The regulation further provides that where a "Nehmer 
class member" is entitled to compensation from a covered 
herbicide disease, and 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 that date and the effective date of the statute or 
regulations 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.  Id. at 50,971.

In this case, the veteran's reopened claim for service 
connection for Hodgkin's lymphoma was received on July 18, 
1990, falling within the scope of the Nehmer Stipulation 2, 
as set forth in the regulation, and warranting an effective 
date of July 18, 1990, for service connection for Hodgkin's 
lymphoma and residuals of a splenectomy, as both were present 
in the 1970s.  In July 1990, the veteran had not yet been 
diagnosed with any heart disorder.  Because the veteran's 
claim for heart disease secondary to his Hodgkin's lymphoma 
was received on March 7, 1994, and the appellant's original 
claim for the cause of the veteran's death from heart disease 
and for accrued benefits was received on January 19, 1999, 
the issue on appeal does not fall within the scope of the 
Nehmer Stipulation 1 or the scope of the Nehmer Stipulation 
2, as set forth in the regulation.  Where these requirements 
are not met, the regulation provides that the effective date 
of the award "shall be determined in accordance with" 38 
C.F.R. §§ 3.114 and 3.400.  68 Fed. Reg. 50,966, at 50,971 
(Aug. 25, 2003) (codified at 38 C.F.R. § 3.816(d)(4)).

Where pension, compensation, or dependency and indemnity 
compensation is awarded or increased pursuant to a 
liberalizing law or VA issue which became effective on or 
after the date of its enactment or issuance, in order for a 
claimant to be eligible for a retroactive payment under the 
provisions of this paragraph the evidence must show that the 
claimant met all eligibility criteria for the liberalized 
benefit on the effective date of the liberalizing law or VA 
issue and that such eligibility existed continuously from 
that date to the date of claim or administrative 
determination of entitlement.

The provisions of this paragraph are applicable to original 
and reopened claims as well as claims for increase.  If a 
claim is reviewed on the initiative of VA within 1 year from 
the effective date of the law or VA issue, or at the request 
of a claimant received within 1 year from that date, benefits 
may be authorized from the effective date of the law or VA 
issue.  38 C.F.R. § 3.114(a)(1).

As noted above, under 38 C.F.R. § 3.400, the effective date 
of service connection based on an original claim is the date 
of receipt of the claim (March 7, 1994), or the date 
entitlement arose, whichever is later.  See 38 U.S.C.A. § 
5110(a).  In this case, the record shows that the veteran was 
diagnosed with coronary artery disease (CAD) and exertional 
angina in December 1992, and with mild congestive heart 
failure, Dressler's syndrome, pleural effusions, and 
recurrent pericarditis in February 1993.  December 1992 
hospital records reflect that there were intrapericardial 
adhesions, probably a reflection of radiation treatment; May 
1995 hospital records attribute the veteran's pericarditis to 
radiation therapy for Hodgkin's lymphoma; and a November 1996 
VA examiner opined, after a review of the medical records, 
that the veteran's cardiac condition probably was related to 
radiation treatment for his Hodgkin's disease.

However, because the regulation adding Hodgkin's disease to 
the list of presumptive diseases due to exposure of Vietnam 
Era veterans to Agent Orange was a liberalizing regulation, 
the effective date in this case is based on 38 C.F.R. 
§ 3.114.  Under 38 C.F.R. § 3.114, where compensation is 
awarded pursuant to a liberalizing law or VA issue, and the 
claim that is reviewed at the request of the claimant is 
received within one year after the effective date of the law 
or VA issue, benefits may be authorized from the effective 
date of the law or VA issue.  38 C.F.R. § 3.114(a)(1).  In 
this case, that date is February 3, 1994, the effective date 
for service connection established by the RO.  The Board thus 
concludes that, in this case, the RO established the earliest 
effective date permitted under the law for the grant of 
compensation (service-connection) benefits for heart 
disability on a secondary basis.  

Disability Rating for Accrued Benefits Purposes

Disability ratings are determined by applying the criteria 
set forth in VA's Schedule for Rating Disabilities (Rating 
Schedule), which is based on the average impairment of 
earning capacity.  Individual disabilities are assigned 
separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. § 4.1 (2005).  If two evaluations are potentially 
applicable, the higher evaluation will be assigned if the 
disability picture more nearly approximates the criteria 
required for that rating; otherwise, the lower rating will be 
assigned.  38 C.F.R. § 4.7.  If there is disagreement with 
the initial rating assigned following a grant of service 
connection, separate ratings can be assigned for separate 
periods of time, based on the facts found.  Fenderson v. 
West, 12 Vet. App. 119, 126 (1999).  See AB v. Brown, 6 Vet. 
App. 35 (1993) (a claim for an original or an increased 
rating remains in controversy when less than the maximum 
available benefit is awarded).  Reasonable doubt as to the 
degree of disability will be resolved in the veteran's favor.  
38 C.F.R. § 4.3.

Since the criteria for rating heart disabilities were revised 
during the pendency of the veteran's appeal for a higher 
initial rating prior to his death in December 1998, the 
appellant is entitled to the application of the version of 
the regulations that would have been more favorable to the 
veteran from the effective date of the new criteria, but only 
the former criteria are to be applied for the period prior to 
the effective date of the new criteria, January 12, 1998.  
VAOPGCPREC 3-2000; see also Rodriguez v. Nicholson, 19 Vet. 
App. 275, 288 (2005) ("Absent clearly expressed intent to 
the contrary, statutes and regulations are presumed not to 
have retroactive effect."  (citing Durr v. Nicholson, 400 
F.3d 1375, 1380 (Fed. Cir. 2005)).

Prior to January 12, 1998, Diagnostic Code 7002 provided that 
constrictive pericarditis was evaluated as rheumatic heart 
disease under the provisions of Diagnostic Code 7000.  
Diagnostic Code 7000 provided a maximum 100 percent 
evaluation for inactive rheumatic heart disease substantiated 
by clinical and roentgenogram confirmation of definite 
enlargement of the heart; dyspnea on slight exertion, rales, 
pretibial pitting at the end of the day, or other definite 
signs of beginning congestive failure; and preclusion of more 
than sedentary labor.  A 60 percent evaluation required 
severe dyspnea on exertion, elevation of systolic blood 
pressure, or such arrhythmias as paroxysmal auricular 
fibrillation or flutter or paroxysmal tachycardia, and 
preclusion of more than light manual labor.  See 38 C.F.R. § 
4.104, Diagnostic Codes 7000, 7002 (1997).  

Effective January 12, 1998 the Rating Schedule provides that 
a maximum 100 percent evaluation is warranted for 
pericarditis for three months following cessation of therapy 
for active infection with cardiac involvement or thereafter, 
with documented pericarditis resulting in chronic congestive 
heart failure, or; when a workload of 3 METs or less results 
in dyspnea, fatigue, angina, dizziness, or syncope, or; left 
ventricular dysfunction with an ejection fracture of less 
than 30 percent.  A 60 percent evaluation is warranted for 
pericarditis resulting in more than one episode of acute 
congestive heart failure in the past year, or; when a 
workload of greater than 3 METs but not greater than 5 METs 
results in dyspnea, fatigue, angina, dizziness, or syncope, 
or; left ventricular dysfunction with an ejection fracture of 
less than 30 to 50 percent.  See 38 C.F.R. § 4.104, 
Diagnostic Code 7002 (2005).

The revised criteria contain objective measurements of the 
level of physical activity, expressed numerically in METs at 
which cardiac symptoms develop; METs generally are measured 
by means of a treadmill test, but also may be estimated.  An 
estimation by a medical examiner of the level of activity 
expressed in METs should be supported by specific examples, 
such as slow stair climbing or shoveling snow) that results 
in dyspnea, fatigue, angina, dizziness, or syncope may be 
used.  38 C.F.R. § 4.104, Note 2 (2005).  One MET is the 
energy cost of standing quietly at rest and represents an 
oxygen uptake of 3.5 milliliters per kilogram of body weight 
per minute.

After a review of the evidence of record, resolving the doubt 
in the appellant's favor, the Board concludes that an initial 
100 percent rating was warranted for the veteran's service-
connected heart disease from February 3, 1994 under the 
regulations in effect prior to January 12, 1998 and those in 
effect after January 12, 1998.  38 C.F.R. § 3.102 (2005).  
This is so because a December 1992 hospital report showed the 
presence of an enlarged heart and dyspnea (shortness of 
breath) and intermittent chest and neck tightness with 
exertion; a February 1993 hospital report reflected mild 
heart failure, and an August 1993 cardiac catheterization 
report from the Mount Sinai Hospital revealed congestive 
heart failure characterized by orthopnea, paroxysmal 
nocturnal dyspnea, dyspnea on exertion and fatigue.  
Moreover, a June 1995 Presbyterian Hospital clinic note 
reflected that the veteran was unemployed and had a long and 
slow recovery following his December 1992 coronary artery 
bypass surgery; that, in August 1993, the veteran underwent a 
right heart catheterization because of congestive heart 
failure and symptoms of orthopnea, paroxysmal nocturnal 
dyspnea, dyspnea on exertion and fatigue, consistent with 
pericardial constriction or restrictive cardiomyopathy; and 
that, after an examination, a June 1995 impression included 
chronic constrictive pericarditis with some obstruction to 
the flow, particularly of the right internal jugular vein 
and/or superior vena cava with drainage of the left superior 
vena cava into the coronary sinus with lower pressures in the 
right atrium, otherwise there might be some type of 
intrathoracic obstruction, either related to scarring or to 
his lymphoma.  The above described symptomatology 
approximates a 100 percent evaluation under the rating 
criteria in effect prior to January 12, 1998, because it 
revealed dyspnea on slight exertion, other definite signs of 
beginning congestive failure, and congestive heart failure.  
Moreover, the appellant testified that the veteran had not 
worked since the Spring of 1993 because of his heart 
condition and a SHARE printout indicated that the Social 
Security Administration had found the veteran disabled as of 
April 28, 1994, thus precluding more than sedentary labor.  
As the RO noted in a September 2002 rating decision, private 
hospital records also reflected that the veteran underwent an 
exercise stress test on May 23, 1995, which showed that he 
achieved a workload of 1.7 METs, meeting the criteria for 100 
percent under the revised rating criteria.

As a result, the Board finds that an effective date of 
February 3, 1994 for a 100 percent rating for the veteran's 
heart disability, for purposes of accrued benefits, is 
warranted.  The Board observes that, in Sharp v. Nicholson, 
403 F.3d 1324, 1327 (Fed. Cir. 2005), the United States Court 
of Appeals for the Federal Circuit (Federal Circuit Court) 
held that 38 U.S.C.A. § 5121(a) does not limit a survivor's 
recovery of accrued benefits to those benefits accrued in the 
two-year period immediately prior to a veteran's death.  See 
also Terry v. Principi, 367 F.3d 1291, 1296 (Fed. Cir. 2004) 
(holding that "38 U.S.C. § 5121(a) only limits a survivor's 
recovery of accrued veteran's benefits to a maximum two-year 
period of benefits accrued.")




ORDER

Subject to the laws and regulations governing the payment of 
monetary benefits, an effective date of February 3, 1994 for 
a 100 percent rating for constrictive pericarditis with 
Dressler's syndrome, for purposes of accrued benefits, is 
granted.



____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs