Citation Nr: 1314065 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-48 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than September 23, 2008 for the payment of Dependency and Indemnity Compensation (DIC) benefits. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from March 1967 to February 1987. He died in April 2006. The appellant is his widow (surviving spouse). This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2008 and March 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran died of amyotrophic lateral sclerosis (ALS) in April 2006. 2. The appellant submitted a claim for DIC benefits seeking entitlement to service connection for the cause of the Veteran's death in May 2006. The claim was denied in an unappealed, final July 2006 rating decision. No new and material evidence was received within one year of that decision. 3. The appellant filed a petition to reopen DIC benefits in August 2007. In a March 2009 rating decision, the RO awarded DIC benefits for ALS, effective from September 23, 2008, the effective date of a new liberalizing regulation for presumptive service connection for ALS. The appellant disagreed with the effective date assigned. 4. There is no legal basis for an earlier effective date prior to September 23, 2008 for DIC based on the award of presumptive service connection for ALS. 5. The evidence of record did not warrant service connection for DIC cause of death benefits on a direct basis prior to September 23, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than September 23, 2008 for the payment of DIC benefits are not met. 38 U.S.C.A. §§ 101, 1310, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.114, 3.151, 3.155, 3.159, 3.318, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). With regard to the VCAA, the issue on appeal stems from disagreement with the effective date assigned upon the award of service connection for the cause of the Veteran's death in a March 2009 rating decision. In this regard, the courts have held, and VA's General Counsel has agreed, that in cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). See also VAOPGCPREC 8-2003 (Dec. 22, 2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. Therefore, although adequate VCAA notice was provided in December 2007 with regard to establishing service connection for the cause of the Veteran's death, no further VCAA notice is necessary for the downstream effective date issue. Governing Law and Regulations for DIC Effective Date DIC may be awarded to a surviving spouse upon the service-connected death of the Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5(a) (2012); see generally 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. Generally, the effective date of an evaluation and award of pension, compensation, or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). However, for claims involving service-connected death after separation from service, an exception applies if an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred. Otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). An exception also applies where DIC compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue. In this instance, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114(a) (2012). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). If a claim is reviewed on the initiative of VA within one year from the effective date of the liberalizing law or VA issue, or at the request of a claimant received within one 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). If a claim is reviewed on the initiative of VA more than one year after the effective date of the liberalizing 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). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing 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). But in order to be eligible for a retroactive award under § 3.114, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. The provisions of § 3.114 are applicable to original and reopened claims as well as claims for increase. 38 C.F.R. § 3.114(a). Appellate review of a rating decision is initiated by a NOD and completed Substantive Appeal after a Statement of the Case (SOC) has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). To date, the issue of CUE in any prior rating decision has not been raised by the appellant and is not before the Board at this time. The proper effective date for new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The Court held, in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A specific claim in the form prescribed by VA must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Earlier Effective Date for DIC Award In April 2006, the Veteran died of ALS. The appellant's original claim for DIC benefits was received by the RO on May 9, 2006, approximately a month after his death. The appellant was initially denied DIC benefits in a July 2006 RO decision. The RO notified the appellant of that decision and apprised her of her procedural and appellate rights, but she did not initiate a timely appeal within one year of notice of the July 2006 RO decision. Therefore, that decision is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). Given the finality of the July 2006 rating action, any effective date assigned must follow that decision. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r); Sears, 16 Vet. App. at 248. No free-standing claim for an earlier effective date prior to the July 2006 rating action is permitted. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The appellant filed a petition to reopen her claim for DIC benefits on August 3, 2007. She was again denied DIC benefits in a February 2008 RO decision, but the appeal continued based on the submission of additional pertinent evidence within one year of the decision. See 38 C.F.R. § 3.156(b). The RO awarded DIC benefits in a March 2009 RO decision, on the basis that ALS was presumptively service connected as the cause of the Veteran's death. The RO did not assign an effective date based on the August 3, 2007 claim to reopen. Instead, the RO assigned an effective date for the payment of DIC benefits of September 23, 2008, the effective date of a new liberalizing regulation. See 38 C.F.R. § 3.318. Specifically, effective September 23, 2008, VA issued a new liberalizing regulation, 38 C.F.R. § 3.318, which established a presumption of service connection for any Veteran who developed ALS at any time after separation from service, provided that (1) there is no affirmative evidence that ALS was not incurred during or aggravated by service; (2) there was no affirmative evidence that ALS was due to the Veteran's own willful misconduct; and (3) the Veteran had active, continuous service of 90 days or more. See 73 Fed. Reg. 54691-01 (effective Sept. 23, 2008). As a liberalizing regulation, DIC benefits were effective on the date the regulation was published - September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2012). The appellant filed a July 2009 notice of disagreement (NOD) with the effective date assigned. The appeal has now reached the Board. The appellant contends that the effective date assigned for the award of service connection for DIC cause of death benefits - September 23, 2008, is not correct. She asserts that she submitted to the RO an October 2007 VA medical opinion from a VA Agent Orange Review article linking the cause of the Veteran's death from ALS to his military service. In essence, she claims that the evidence of record demonstrated entitlement to direct (as opposed to presumptive) service connection and thus DIC benefits for ALS prior to the current September 23, 2008 effective date assigned. See July 2009 NOD; October 2010 VA Form 9. Initially, with regard to presumptive service connection for ALS under 38 C.F.R. § 3.318, as discussed above, where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue, which in the present case is September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114(a) (2012). See also McCay v. Brown, 9 Vet. App. 183, 187 (1996) ("plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation"), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In fact, 38 C.F.R. § 3.318 applies to all applications for benefits received by VA on or after September 23, 2008, or that were pending before VA, the Court, or the United States Court of Appeals for the Federal Circuit on September 23, 2008. See 73 Fed. Reg. 54691-01 (effective Sept. 23, 2008); 74 Fed. Reg. 57072 -01 (Nov. 4, 2009). Furthermore, both the interim final rule and the final rule provide that, in accordance with 38 U.S.C.A. § 5110(g) (i.e., the statutory section governing effective dates assigned pursuant to liberalizing laws), the effective date of benefits awarded pursuant to this rule will be assigned in accordance with the facts found, but cannot be earlier than the effective date of this rule, or the date one year prior to the date of application, whichever is later. Id. Here, the 2008 effective date is the later of the two dates as the appellant filed her claim to reopen in 2007. Moreover, in the comments section to the final rule, VA specifically addressed survivor benefits, stating that, although a Veteran's survivor who establishes that the Veteran died from ALS before September 23, 2008 may be eligible for DIC pursuant to the new 38 C.F.R. § 3.318, the survivor would not be entitled to any retroactive benefits before September 23, 2008. See 74 Fed. Reg. 57072-01 (Nov. 4, 2009). Thus, when considering presumptive service connection for ALS, the appellant was correctly awarded the earliest date possible under VA law - September 23, 2008, even in cases where the claim was originally filed and/or denied prior to September 23, 2008. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). There is no legal basis for an earlier effective date for DIC based on the award of presumptive service connection for ALS. Regardless, the Board will also consider whether the evidence of record warrants an earlier effective date prior to September 23, 2008 for DIC benefits, on the basis of direct, non-presumptive service connection for the cause of the Veteran's death. See 38 C.F.R. §§ 3.303(a); 3.312; Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this vein, after the RO's final July 2006 rating decision that denied DIC benefits, any potential effective date after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). In the present case, the appellant filed her petition to reopen her claim for DIC benefits on August 3, 2007. As to the date of entitlement, in May 2008, she submitted an October 2007 VA Agent Orange Review article that discussed a November 2006 National Academy of Sciences (NAS), Institutes of Medicine (IOM) report. This report by the IOM committee concluded that although there are some problems with the handful of scientific studies, nevertheless, "there is limited or suggested evidence of an association between military service and later development of ALS" in all Veterans. The appellant claims this document in itself warranted entitlement to service connection for ALS on a direct basis at an earlier date than September 23, 2008. With regard to direct service connection for DIC cause of death benefits prior to September 23, 2008, service treatment records are negative for any complaint, treatment, or diagnosis of ALS. Post-service, the first evidence of symptoms of ALS in the claims folder is a December 2004 TRICARE medical provider's report revealing the Veteran's testing is "most worrisome for ALS." This is approximately 15 to 16 years after discharge from service. The Veteran's medical condition continued to deteriorate, until his death certificate confirms he died of ALS in April 2006. Although the appellant's lay assertions are probative as to the onset of the Veteran's observable symptoms, as a lay person she is not competent to provide etiology or medical nexus evidence in this particular case for ALS, as it falls outside the realm of common knowledge of a lay person. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay persons not competent as to etiology in a complex medical situation such as rheumatic fever). Therefore, the earlier effective date issue hinges on whether the probative value of the October 2007 VA Agent Orange Review article is such that it indicates entitlement to direct service connection for the cause of the Veteran's death at that time. The Board concludes that an earlier effective date is not warranted based on the theory of direct service connection prior to September 23, 2008 for several reasons. First, the October 2007 VA Agent Orange Review article only indicates "there is limited or suggested evidence of an association between military service later development of ALS" in all Veterans. The operative terms are "limited or suggested evidence of an association." With consideration of the other evidence of record at that time, the VA Agent Orange Review article would not warrant direct service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that evidence favorable to the claim that merely suggests a possibility that the disorder might have been caused by service radiation exposure is insufficient to establish service connection). Second, the October 2007 VA Agent Orange Review article was not specific to the Veteran and was not accompanied by a medical opinion. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature which does not apply medical principles regarding causation or etiology to the facts of an individual case does not provide competent evidence to establish a nexus between current disability and military service). The Board concludes that this information is insufficient to establish a medical nexus opinion that would place the date of entitlement any earlier than September 23, 2008. Moreover, as noted, the liberalizing regulation, 38 C.F.R. § 3.318, was the singular basis for the award of DIC benefits in the present case. Accordingly, the preponderance of the evidence is against an effective date earlier than September 23, 2008 for the payment of DIC benefits for ALS. 38 U.S.C.A. § 5107(b). The appeal is denied. ORDER An effective date earlier than September 23, 2008 for the payment of DIC benefits is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs