Citation Nr: 1339706 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-00 142A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date prior to August 31, 2010 for the award of service connection for Parkinson's disease. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDINGS OF FACT 1. The RO denied entitlement to service connection for Parkinson's disease in a February 2004 rating decision. 2. The Veteran filed a notice of disagreement in August 2004 and a statement of the case was issued in December 2005. The Veteran did not appeal this decision and it became final. 3. The Veteran filed a petition to reopen a claim of entitlement to service connection for Parkinson's disease, which was received by the RO on August 19, 2010. 4. Effective August 31, 2010, a final rule was published in the Federal Register amending 38 C.F.R. § 3.309(e) concerning presumptive service connection for certain diseases associated with herbicide exposure, to include establishing presumptive service connection for Parkinson's disease. CONCLUSION OF LAW Entitlement to an effective date prior of August 31, 2010, for the award of service connection for Parkinson's disease is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Significantly, however, the United States Court of Appeals of the Federal Circuit has held that, with regard to claims for an earlier effective date, once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regardless, the Veteran was provided notice on substantiating his claim in September 2009. Regarding the duty to assist, all relevant records have been obtained and the Veteran has been provided with an opportunity for a hearing. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Appellant by VA would be capable of substantiating her claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Analysis The Veteran alleges that service connection for Parkinson's disease should be effective to the date he filed his original claim of entitlement to service connection, May 30, 2003. He contends that as the VA has conceded he has Parkinson's disease, as related to service, the effective date should begin in May 2003. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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 C.F.R. § 3.400. As the Veteran had previously filed a claim for service connection for Parkinson's disease, the effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). See Leonard v. Principi, 405 F.3d 1333 (Fed. Cir. 2005); Nelson v. Principi, 18 Vet. App. 407, 409 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215 (1993). The Veteran filed his original claim for service connection for Parkinson's disease in May 2003. In February 2004 the RO denied the claim. The Veteran was notified of this decision and of his appellate rights by letter dated February 26, 2004. The Veteran filed a notice of disagreement in August 2004 and a statement of the case was issued in December 2005. The Veteran filed a VA Form 9 in January 2006 and specifically stated that he was only appealing the issue of entitlement to service connection for posttraumatic stress disorder. As such, the February 2004 rating decision that denied service connection for Parkinson's disease became final. 38 C.F.R. § 20.1103. Accordingly, new and material evidence was required to reopen any future claim for service connection for Parkinson's disease. The RO accepted the Veteran's August 17, 2009 statement as a petition to reopen his claim of entitlement to service connection for Parkinson's disease. In his petition, he requested that his claim be reopened as he had recently learned that Parkinson's disease had been linked to Agent Orange exposure. Over the course of the appeal the RO obtained VA treatment records, the Veteran's statements, and a VA examination report. The Veteran's claim was granted in a November 2010 rating decision, effective August 31, 2010, the date the law changed to add Parkinson's disease as a presumptive condition related to herbicide exposure. The Veteran disagreed with the decision and indicated that the effective date should be earlier. The Veteran's claim for an earlier effective date must be denied for several reasons. Pertinent regulations outlined above explicitly indicate that the effective date for service connection for a reopened claim cannot be earlier than the date of receipt of the claim to reopen. The Veteran did not have a claim, informal or formal, pending prior to August 17, 2009. Accordingly, the effective date could not be earlier than the date his claim was filed. With regard to Parkinson's disease being related to herbicide exposure, this liberalizing law did not go into effect until August 31, 2010. As the Veteran's claim was received on August 17, 2009 and was pending at the time the law went into effect, August 31, 2010 is the earliest an effective date can be assigned. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. 38 C.F.R. § 3.816 (2005-2013) sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991) (Nehmer Stipulation). For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide disease. The Board is sympathetic to the Veteran's contentions that he was exposed to Agent Orange in Korea during the Vietnam era and should be included as part of the Nehmer class and assigned an earlier effective date for the award of service connection for Parkinson's disease. See January 2012 Form 9. Unfortunately, per the Nehmer Stipulation, this class of veterans is limited to those who were specifically exposed to herbicides in country in Vietnam. There are no exceptions for herbicide exposure that occurred outside the country. Thus, the Veteran cannot be considered a Nehmer class member and his claim cannot be assigned an effective date prior to when the law went into effect on August 31, 2010. See 38 C.F.R. § 3.816(b)(1)(2) (2013). The Board acknowledges the Veteran's contentions that his Parkinson's disease is related to service. However, there are no pending, unadjudicated claims for entitlement to service connection for Parkinson's disease prior to when he filed his claim in August 2009 and even if there was an outstanding claim, the change in law awarding service connection for Parkinson's disease due to herbicide exposure did not go into effect until August 31, 2010. The Veteran is also not entitled to an earlier effective date as being part of the Nehmer class. While it is possible that the Veteran could overcome the finality of a decision by alleging clear and unmistakable error (CUE), he has not as of this date challenged earlier decisions on the basis of CUE. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.105, 20.1403. Therefore, an effective date earlier than August 31, 2010, for the award of service connection for Parkinson's disease is not warranted. ORDER Entitlement to an effective date prior to August 31, 2010 for the award of service connection for Parkinson's disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs