Citation Nr: 0814614 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-09 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than August 11, 2002 for the payment of dependency and indemnity compensation (DIC) for service connection for cause of the veteran's death. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The veteran had active service from July 1960 to July 1980. He died in July 1998. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) Waco, TX that denied entitlement to an earlier effective date than August 11, 2002 for payment of DIC compensation for service connection for cause of the veteran's death and entitlement to special monthly compensation, based on a need for the regular aid and attendance of another person, or being housebound. A November 2006 rating decision granted entitlement to special monthly compensation based on a need for the regular aid and attendance of another person, effective September 15, 2005. The appellant has not appealed this decision and the only matter remaining on appeal is as stated on the previous page. FINDINGS OF FACT 1. The appellant filed an original claim for DIC compensation for service connection for the cause of the veteran's death within one year of the date of his death . 2. The appellant is a "Nehmer class member" whose husband died of a covered herbicide disease in July 1998. CONCLUSION OF LAW The requirements for an effective date of July 1, 1998, for the payment of DIC compensation for service connection for cause of the veteran's death have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400, 3.816 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served in Vietnam from September 25, 1965 to September 14, 1966. He died in July 1998. Respiratory failure due to bipolar left pneumonia due to cancer of the right lung with atelectasis was certified as the cause of death. It was noted that cancer of the right lung had been present for approximately one year. During the veteran's lifetime, service connection was in effect for right leg shell fragment wound and hypertension, since the day after discharge. On July 30, 1998, the appellant's claim for death benefits was received. A May 1999 rating decision denied service connection for the cause of death and entitlement to DIC under 38 U.S.C.A. § 1318 finding that the evidence failed to show that the veteran's death was related to military service. Eligibility for Dependents' Educational Assistance also was not established. The appellant was notified about the decision in June 1999. Prior to the May 1999 rating decision becoming final, on April 17, 2000, a claim for death benefits was received, in which the RO treated solely as a claim for VA death pension benefits. (A June 2000 determination letter awarded VA death pension benefits starting May 1, 2000). In August 2003, the appellant's son resubmitted the April 17, 2000 application along with duplicative medical records. A September 2003 rating decision granted service connection for the cause of death in light of enactment of a liberalizing law, the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001), which, among other things, removed the 30-year limitation on presumptive service connection for respiratory cancers due to herbicides exposure. In regards to the assigned effective date, the RO indicated that a claim to reopen the underlying service connection for cause of death claim was not received until the August 11, 2003. The RO indicated that since the claim was received more than one year after the date of the change in the law eliminating the requirement that respiratory cancer become manifest within 30 years after departure from Vietnam, the proper effective date could only go back one year prior to the date of the claim, or August 11, 2002. In August 2005, the appellant disagreed with the assigned effective date. In January 2006, the RO denied entitlement to an earlier effective date and cited the same reasons discussed above in the September 2003 rating decision. A Statement of the Case was issued in March 2006, and the appellant perfected an appeal. The assignment of effective dates of awards is governed, in general, by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2005). Unless expressly provided otherwise, the effective date of an award or evaluation is "fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation states that the effective date of award of compensation, in general, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(c)(2), the effective date for the cause of a veteran's death is the first day of the month in which death occurred if the claim is received within one year after the date of death; otherwise, it is the date of receipt of the claim. Under 38 C.F.R. § 3.114(a), where a claim is allowed pursuant to a liberalizing law, which Public Law 107-103 was, then the effective date of such allowance "shall be fixed in accordance with the facts found, but shall not be earlier than the effective date" of that law. Under 38 C.F.R. § 3.114(a)(1), where a claim is reviewed on VA's initiative or at the claimant's request received within one year from the effective date of the liberalizing law and is then granted, entitlement to benefits could begin on the effective date of the law. If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than one year after the affective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The RO found that a claim had not been received within one year from the effective date of liberalizing law and assigned an effective date of August 11, 2002 for the period of one year prior to the date of receipt of the claim. The appellant filed multiple written statements to support her claim. In her August 2005 notice of disagreement, the appellant seems to be contending that the effective date should commence many years earlier than the date of death because there were indications that the veteran had right lung cancer dating back to 1980. In a September 2005 statement, the appellant indicated that cancer of the lung was first noticed by Dr. G. in March 1997. She also indicated that a claim for DIC benefits was first filed in 1998 and that the May 1999 rating decision should be the rating decision on appeal. The Board has considered the appellant's contentions and agrees with the appellant to the extent that the May 1999 rating decision that denied entitlement to death benefits is the proper rating decision on appeal. As noted, the claims file contains evidence demonstrating that the appellant had filed a claim for entitlement to death benefits in July 1998 (within a month of her husband's death). In June 1999, the appellant received notice that a May 1999 rating decision denied her claim. Prior to the expiration of the appeal period, on April 17, 2000, an application was received for death benefits. Although the RO treated this application only as a request for death pension, the Board notes that in accordance of 38 U.S.C.A. § 3.152(b)(1) a claim by a surviving spouse for death pension will be considered to be a claim for death compensation or DIC. As the May 1999 rating decision had not become final yet, the April 17, 2000 application for death benefits could be reasonably construed as a notice of disagreement with the March 1999 rating decision. 38 U.S.C.A. § 20.01 Generally speaking, in a cause-of-death claim, other than the exception in 38 C.F.R. § 3.400(c)(2) (the effective date for the cause of death is the first day of the month in which death occurred, if the claim is received within one year after the date of death), the effective date cannot commence before the date of death. Here, it was determined posthumously that Vietnam service did play a role in the development of lung cancer that caused death, and, on that basis, service connection was granted for the cause of death, and the Board finds that the appellant did file her claim within one year after the veteran's death. Other provisions also apply, which govern in this case in lieu of the general earlier effective date criteria. In May 1989, the U.S. District Court for the Northern District of California voided all denials of Agent Orange claims based on a regulation 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 regulations. Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II). In May 1991, the government and Nehmer plaintiffs stipulated that VA would readjudicate any claim denials voided by the Nehmer I holding. Nehmer v. United States Veterans' Administration, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991). The effective date of any resulting award would be based upon 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, 15 Vet. App. 189, 195-97 (2001) (en banc) aff'd, 310 F.3d 1374, 1375-76 (Fed. Cir. 2002). The Nehmer stipulations were incorporated into 38 C.F.R. § 3.816. The regulation defines a "Nehmer class member" to include a surviving spouse of a deceased Vietnam veteran who died from a covered herbicide disease, to include respiratory cancers (lung, bronchus, larynx, or trachea cancer). See 38 C.F.R. § 3.816(b)(1)(ii) and (b)(2)(viii). Thus, the appellant is a "Nehmer class member." The regulation also provides for special effective date provisions for Nehmer class member cause-of-death claims. Under 38 C.F.R. § 3.816(d)(2), where, as here, the claim was filed between May 3, 1989 and the effective date of the law establishing presumptive service connection for the covered herbicide disease that caused death (lung cancer is encompassed within the category of "covered herbicide diseases" for which VA has established presumptive service connection before October 1, 2002), the effective date of the award will be the later of the date such claim was received by VA or the date the death occurred, except as otherwise provided in 38 C.F.R. § 3.816(d)(3). Under 38 C.F.R. § 3.816(d)(3), where, as here, the Nehmer class member's claim was received within one year from the veteran's death, then the effective date of the award is the first day of the month in which death occurred. Only where the aforementioned requirements are not met would the effective date assignment be based on 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(d)(4). Therefore, in this case, the earliest possible effective date for the cause of the veteran's death is July 1, 1998, the first day of the month of the veteran's death. This is consistent with the special effective date provisions for Nehmer class member cause-of-death claims, and as well, 38 C.F.R. § 3.400(c)(2). Under the circumstances of this case, these provisions are, in essence, the sole provisions that allow service connection for the cause of the veteran's death on a date before the date of death. No effective date earlier than July 1, 1998 is permissible based on governing effective date provisions. That date is more favorable to the appellant than if the general earlier effective date rule (the later of the date of the filing of the claim (July 30, 1998) or the date entitlement to service connection for the cause of death is shown, which cannot be earlier than the date of death, or January 1, 2002 the date the "liberalizing law" became effective.) The Board concedes that the RO decision below did not evaluate the claim based on special Nehmer class member effective date provisions in 38 C.F.R. § 3.816. The Board finds no actual prejudice to the appellant given the favorable decision herein and finds no basis for remand for RO readjudication of the claim under 38 C.F.R. § 3.816 since the Board is favorably applying that regulation in this case. Nor does the Board need to decide whether or not VA complied with notice and claim development assistance requirements. See 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (harmless error). Again, the effective date here is governed by Nehmer class member provisions. The Board also notes that basic eligibility to Dependent's Education Assistance was granted from August 11, 2002, the date the RO originally determined that service connection for cause of death became effective. As this Board decision changes the effective date for the payment of DIC compensation for service connection for the cause of the veteran's death, the effective date for DEA should correspond accordingly. ORDER Subject to the provisions governing the award of monetary benefits, an effective date of July 1, 1998, for the payment of DIC compensation for service connection for cause of the veteran's death is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs