Citation Nr: 1451069 Decision Date: 11/18/14 Archive Date: 11/26/14 DOCKET NO. 13-21 217 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an effective date prior to September 27, 2011, for the grant of service connection for the cause of the Veteran's death. 2. Entitlement to accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to May 1973. The Veteran died in November 1981, and the appellant is the Veteran's surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Local jurisdiction has since been returned to the RO in Seattle, Washington. The November 2011 rating decision on appeal granted service connection for the cause of the Veteran's death, and when filing her disagreement with the effective date assigned, the appellant asserted her entitlement accrued benefits owed to the Veteran at the time of his death. The RO assumed jurisdiction of this issue, as the issue is captioned in the subsequent statement of the case that addresses the propriety of the effective date assigned. Thereafter, the appellant filed a timely substantive appeal, voicing her desire to appeal all of the issues addressed in the statement of the case, and the RO then certified both the effective date and accrued benefits claims for appeal. In September 2014, the appellant appeared at a hearing before the undersigned Veterans Law Judge, during which the appellant agreed that both the effective date and accrued benefits claims were on appeal. A transcript of the hearing is in the Veteran's file. Although the issue of entitlement to accrued benefits was first adjudicated by a statement of the case, VA has treated the claim of entitlement to accrued benefits as if it were in appellate status, and the appellant's actions indicate her belief that the claim is in appellate status. Thus, the Board may elect to exercise jurisdiction of the claim. See, e.g., Percy v. Shinseki, 23 Vet. App. 37 (2009). Moreover, as the application of law to the undisputed facts are dispositive of this issue, the Board finds that the appellant will not be prejudiced by the Board's adjudication of this issue. Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. FINDINGS OF FACT 1. The appellant's claim of service connection for the cause of the Veteran's death, amyotrophic lateral sclerosis (ALS), was initially denied in a Board decision (the date of which is unclear); the appellant subsequently sought to reopen her claim for the cause of the Veteran's death, and her claim was most recently previously denied by a final decision issued in January 1996, which was accompanied by an advisory of appellate rights. 2. The appellant's current claim to reopen, from which the instant appeal stems, was received in September 2011. 3. As service connection for the cause of the Veteran's death was granted on the appellant's motion, namely as a result of her claim to reopen, and as the claim was received more than one year after the September 2008 effective date of the liberalizing law establishing the presumption of service connection for veterans diagnosed with ALS, an effective date may be awarded one year prior to the date of receipt of her claim to reopen. 4. The Veteran's claim for service connection for ALS, brought during his lifetime, was denied by a Board decision (the date of which is unclear). CONCLUSION OF LAW 1. An effective date of September 27, 2010 is assigned for the grant of service connection for the cause of the Veteran's death. 38 U.S.C.A. §§ 5101, 5107, 5110 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.1(p), 3.114(a), 3.155, 3.318, 3.400 (2014); 73 Fed. Reg. 54691-01 (Sept. 23, 2008). 2. Entitlement to accrued benefits is not warranted as a matter of law. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2014); 38 C.F.R. § 3.1000 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The appeal is of the effective date of a granted claim; thus, no additional notice is necessary. Additionally, no reasonable possibility exists that any additional assistance would aid in substantiating an earlier effective date than the date awarded below. The case turns on when the appellant filed a claim, so no further assistance is necessary. With regard to the appellant's claim seeking accrued benefits owed to the Veteran at the time of his death, the application of the law to the undisputed facts is dispositive of this appeal. Specifically, while Veteran's file was apparently lost in 1988 when the claims file was transferred to another RO, the RO has undertaken attempts to rebuild the claims file to the extent possible, and the appellant, through her careful record keeping, has supplied documents that further reflect the procedural history of her claims, dating back to her initial Dependency and Indemnity Compensation claim. Therefore, the record is sufficiently complete to allow adjudication of this claim, and there is no indication that further efforts to rebuild the file would be fruitful. Accordingly, any additional notification and assistance is unnecessary. See Mason v. Principi, 16 Vet. App. 129 (2002). II. Earlier Effective Date Claim Factual Background The appellant is seeking an earlier effective date for the grant of service connection for the cause of the Veteran's death, which has been awarded effective September 27, 2011. The Veteran, who died in November 1981, began seeking service connection for the disease that would lead to his cause of death, ALS, in 1980. His service connection claim was ultimately denied by the Board, and after his death, the appellant sought service connection for the cause of his death, and her claim was also denied by the Board. The Board denied the claims after concluding that the evidence of record failed to demonstrate that the Veteran developed ALS during or within one year after service. Thereafter, newspaper articles submitted by the appellant chronicle her support of proposed legislation that would allow service connection for ALS if the disease developed within seven years of service, and the appellant also attempted to reopen her claim on multiple occasions, but as the state of the law remained unchanged, her claims were denied, most recently by a final decision issued by the RO in January 1996. The appellant filed the claim to reopen from which this appeal stems in September 2011. As the law had been amended to allow a presumption for service connection for ALS for all veterans who served 90 days or more and later developed ALS, the RO granted her claim to reopen, awarded service connection for the cause of the Veteran's death, and awarded an effective date commensurate with the date of receipt of her claim to reopen, September 27, 2011. The appellant and her representative assert that because the Veteran sought service connection for ALS during his lifetime, and the appellant has steadfastly continued to try to seek service connection for the cause of his death during the many years thereafter, the appellant should be awarded an earlier effective date for the grant of service connection for the cause of the Veteran's death. Applicable Laws and Regulations Effective September 23, 2008, VA issued a regulation establishing presumptive service connection for ALS. See 38 C.F.R. § 3.318; see also 73 Fed. Reg. 54691 (Sept. 23, 2008). This regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the veteran had active, continuous service of 90 days or more. 38 C.F.R. § 3.318. Service connection for the cause of a veteran's death 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. 2014); 38 C.F.R. § 3.5(a) (2014); see generally 38 U.S.C.A. Chapter 11. Generally, a Veteran's death is deemed to be 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 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303 (2014). Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after the issuance of a statement of the case 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. 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. § 3.105(a). The proper effective date for a claim to reopen based on the issuance of 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). In Sears v. Principi, 16 Vet. App. 244, 248 (2002), it was held 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." An exception also applies where dependency and indemnity compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue. In such cases, 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) (2014); 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). However, 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). Additionally, the Veteran's representative contended that the appellant's case falls under the "Nehmer" effective date rules. However, those rules only apply to certain Vietnam veterans who have a covered herbicide disease, which is the case here. See 38 C.F.R. § 3.816 (2014). Analysis At the outset, the Board acknowledges and is sympathetic to the appellant's general assertions that because the Veteran tried to seek service connection for ALS during his lifetime and died due to ALS, and because she has sought service connection for the cause of his death for the many years thereafter, service connection for his cause of death should be awarded retroactively to reflect her and the Veteran's longstanding efforts to have VA recognize that the Veteran developed ALS as a result of, or during, his approximate 20 years of military service. However, the Board is strictly bound by the laws and regulations enacted by Congress and case law. To that end, because the appellant's previous claim of service connection for the cause of the Veteran's death and subsequent claims to reopen are "final" by operation and time and law (they were either denied by final Board decisions or by unappealed rating decisions), an effective date generally may not be awarded prior to the date of receipt of her claim, absent an allegation that the previous final decisions are predicated on clear and unmistakable error (CUE). 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. However, an exception applies when service connection for the cause of death is awarded pursuant to a "liberalizing" law. Here, there is no question that the establishment of presumptive service connection for ALS is a liberalizing act, as it has been held that amendments creating presumptive service connection for diseases constitute liberalizing laws. See Spencer v. Brown, 4 Vet. App. 283, 287 (1993) (recognizing as a liberalizing law "a provision of law or regulation creates a new basis for entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit"). Thus, an effective date awarded pursuant to a liberalizing law may, in relevant part, either be awarded commensurate with the effective date of the liberalizing law, if the claim for benefits is received within one year of the date of the enactment of the law (in this case, September 2008), or if the claim for benefits is received beyond one year after the liberalizing law's effective date, an effective date may be awarded one year prior to the date of receipt of claim. In this case, the appellant's claim for entitlement to service connection for the cause of the Veteran's death was reviewed on her own initiative (in other words, the claim was not reviewed on VA's initiative), but the claim was received in September 2011, more than one year prior to the September 2008 effective date of the legislation, an effective date of one year prior to the date of receipt of claim is warranted. See 38 C.F.R. § 3.114(a)(3). The Board finds that the record reflects the appellant's eligibility for entitlement to benefits on this date, and thus, the award is proper. Thus, an effective date of September 27, 2010, but not earlier, for the grant of service connection for the cause of the Veteran's death, is warranted. The preponderance of the evidence is against an even earlier effective date even with consideration of the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Accrued Benefits The law governing claims for accrued benefits provides that, upon the death of a veteran, his lawful 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 rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. For a claimant to prevail in her accrued benefits claim, the record must show the following: (1) the appellant has standing to file a claim for accrued benefits (see 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000); (2) the Veteran had a claim pending at the time of his death (see 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998)); (3) the Veteran would have prevailed on his claim if he had not died (Id.); and (4) the claim for accrued benefits was filed within one year of the Veteran's death (see 38 U.S.C.A. § 5121(c); 38 C.F.R. § 3.1000(c)). The record reflects that the Veteran sought service connection for ALS during his lifetime and perfected an appeal of the RO's denial of this claim. Although the date of the issuance is unclear, the claim was later denied by the Board. As the evidence fails to reflect that the Veteran had a pending VA claim for benefits at the time of his death and that he would have prevailed on his claim but for his death, the appellant's claim for accrued benefits must fail as a matter of law. ORDER An effective date of September 27, 2010 for the grant of service connection for the cause of the Veteran's death is granted. Entitlement to accrued benefits is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs