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