Citation Nr: 1605241 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 12-27 222A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to August 6, 2009 for the grant of Dependency and Indemnity Compensation (DIC) benefits based on service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION Appellant is the surviving spouse of a veteran, hereinafter referred to as the Veteran, who had active service from June 1966 to June 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania, which, in pertinent part, granted service connection for the cause of the Veteran's death effective August 6, 2009 (one year before the claim was received by VA based on liberalizing VA regulations). In April 2015, the Board remanded the issue on appeal for additional development. The Board is granting an effective date of April 1, 1985 (the first day of the month in which the Veteran's death occurred) for the award of DIC benefits, constituting a full grant of the benefit sought on appeal; therefore, any discussion with regard to compliance with the Board's remand instructions is rendered moot. FINDINGS OF FACT 1. The Veteran died on April [redacted], 1985. 2. The immediate cause of death listed on the death certificate is metastatic bronchogenic carcinoma with pneumonia. 3. The Veteran had confirmed duty in the Republic of Vietnam during the Vietnam era, so is presumed to have been exposed to herbicide agents in service. 4. Effective June 9, 1994, respiratory cancer (including cancer of the lung, bronchus, larynx, and trachea) was added to 38 C.F.R. § 3.309(e) as a disease presumptively associated with exposure to herbicides in Vietnam during the Vietnam era. 5. A May 2011 rating decision granted service connection for the cause of the Veteran's death effective August 6, 2009, finding that the cause of death, specifically bronchogenic carcinoma, was presumptively related to in-service exposure to herbicide agents. 6. The appellant's application (on a Form SSA 5) for survivor's benefits (mother with child in care) was received by the Social Security Administration (SSA) within one year of the Veteran's death in 1985. 7. The appellant's application for SSA survivor benefits was on a form jointly prescribed by VA and SSA; therefore, a claim for DIC benefits was constructively received VA within one year of the Veteran's death. CONCLUSION OF LAW The criteria for an effective date of April 1, 1985 for the award of DIC benefits based on service connection for the cause of the Veteran's death have been met. 38 U.S.C.A. §§ 5103A, 5105, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.114(a), 3.152, 3.153, 3.159, 3.326(a), 3.400(c)(2), 3.816(d) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The resolution of an appeal for an earlier effective date turns on the law as applied to the undisputed facts regarding the dates of receipt of claim and date entitlement arose. As this appeal turns on a matter of law, further assistance, such as the further procurement of records, would not assist the appellant with the claim. Consequently, no further notice or development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Date for DIC Benefits DIC may be awarded to a surviving spouse upon the service-connected death of a veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2014); 38 C.F.R. §§ 3.5(a), 3,152 (2015); 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 (West 2014); 38 C.F.R. §§ 3.1(k), 3.303 (2015). Generally, for claims involving service-connected death after separation from service, if an application for DIC benefits 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 for DIC benefits is the date of receipt of the claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). The earliest date for commencement of payment of an additional award of compensation for a dependent spouse is the first day of the month following the effective date38 C.F.R. § 3.31 (2015). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2015); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a claimant's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2015). Effective on June 9, 1994, VA amended 38 C.F.R. § 3.309(e) to add respiratory cancers (including cancer of the lung, bronchus, larynx, and trachea) to the list of diseases associated with exposure to certain herbicide agents. See 59 Fed. Reg. 29,723 (June 9, 1994). The intended effect of this amendment was to establish presumptive service connection for this disease based on herbicide exposure. The final rule is applicable to claims received by VA on or after June 9, 1994, and to claims pending before VA on that date. Generally, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.400(p), 3.114(a). There are exceptions to this rule, however, which allow for retroactive payments. If the claim is reviewed on the initiative of VA or by request of the claimant within 1 year from the effective date of the law or VA issue, then the proper effective date is the same date the change of law went into effect. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA or by request of the claimant more than one year after the effective date of the law, the effective date will be one year prior to the date of administrative review or claimant request if the claimant met all of the requirements for eligibility as of the date of the liberalizing law. 38 C.F.R. § 3.114(a)(2), (3). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. VA has promulgated special rules for effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a U. S. District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in Nehmer (Nehmer Stipulation). For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide disease, in this case, bronchogenic cancer. Review of the evidence of record reflects that the Veteran served in the Republic of Vietnam during the Vietnam era. Thus, the Veteran is considered a Nehmer class member. The appellant is also a Nehmer class member as the Veteran's surviving spouse. See 38 C.F.R. § 3.816(b)(1)(2). If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award, if the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, will be the later of the date such claim was received by VA or the date the disability arose, unless the claim was received within a year following separation from service. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. § 3.816(c)(2). If the above requirements are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 38 C.F.R. § 3.816(d)(2) provides that, if a class member's claim for cause of death or other DIC benefits was pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused the death, 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, whichever is later. However, if the claim was received within a year following death, the effective date of the award shall be the first day of the month in which the death occurred. 38 C.F.R. § 3.816(d)(2), (3), (4). The appellant essentially contends that the AOJ should have assigned an effective date earlier than August 6, 2009 for the grant of DIC benefits based on service connection for the cause of the Veteran's death. Specifically, the appellant contends that she filed a claim for SSA survivor benefits within one year of the Veteran's death in April 1985 on a form jointly prescribed by VA and SSA and, therefore, the SSA claim also constituted a claim for DIC benefits. The appellant contends that the claim for DIC benefits was constructively before VA within one year of the Veteran's death in April 1985. As such, the appellant contends that DIC benefits should have been awarded effective the date of the Veteran's death. See November 2015 written statement. 38 U.S.C.A. § 5105 provides that the VA Secretary and the Commissioner of Social Security shall jointly prescribe forms for use by survivors of members and former members of the uniformed services in filing applications for benefits under Chapter 13 of Title 38 of the U.S. Code (DIC benefits) and under Title II of the Social Security Act (42 U.S.C. 401 et seq.); and that when an application is filed with either Secretary, it shall be deemed to be an application for benefits under both Chapter 13 of Title 38 of the U.S. Code (DIC benefits) and under Title II of the Social Security Act (42 U.S.C. 401 et seq.). Furthermore, a copy of such application filed with either Secretary, together with any additional information and supporting documents, shall be transmitted by the Secretary receiving the application to the other official. 38 U.S.C.A. § 5105; 38 C.F.R. § 3.153. As reason for not assigning an earlier effective date, VA adjudicators thus far have concluded that the DIC claim for the cause of the Veteran's death was not received until August 6, 2010, and that an effective date for DIC benefits could not be granted any earlier than a year prior, meaning August 6, 2009. Pursuant to 38 C.F.R. § 3.153, an application for SSA benefits is considered a claim for death benefits and is deemed to have been received by VA as of the date of receipt by the SSA, provided such application is "on a form jointly prescribed by the Secretary and the Commissioner of Social Security." 38 C.F.R. § 3.153. Jointly-prescribed forms include VA survivor benefit applications and SSA survivor applications (Forms SSA 4, 5, 7, and 10). The evidence shows the appellant submitted a claim to SSA for survivor's benefits (on a Form SSA 5) shortly after (within one year of) the Veteran's death in April 1985. See October 2015 letter from SSA. The October 2015 confirmation letter from SSA indicates that the appellant was receiving mother with child in care benefits beginning on April 15, 1985 and that Form SSA 5 was used to apply for said benefits. Form SSA 5 informs the applicant that "[t]his may also be considered an application . . . for Veterans Administration payments under Title 38 U.S.C., Veterans Benefits, Chapter 13 (which is, as such, an application for other types of death benefits under Title 38)." Multiple documents from the SSA for tax years beginning in 1985 demonstrate benefits paid to the appellant and her dependent children under the Veteran's social security number. The Board finds an October 2015 confirmation letter from SSA and associated SSA tax documents are sufficient to prove that the appellant filed a claim for SSA survivor benefits well within one year of the Veteran's April 1985 death. The fact that the AOJ was unaware of its filing is immaterial, as it is not the appellant's responsibility to apprise VA of a SSA application. Rather VA is charged with "constructive notice" of its filing. Cf. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (similarly applying this concept in recognition of VA medical records that are constructively in the file, even if not physically so). As such a claim for DIC benefits was constructively pending before VA since 1985. In this case, the claim for DIC benefits was constructively received by VA within one year following the Veteran's death in April 1985. The claim was pending before VA on May 3, 1989 and before the 1994 liberalizing law went into effect. There was no VA adjudication of the DIC claim prior to the May 2011 rating decision granting DIC benefits based on service connection for the cause of the Veteran's death (recognizing bronchogenic carcinoma as the cause of death). Based on the above, the Board finds that April 1, 1985 (the first day of the month of the Veteran's death on April [redacted], 1985) is the appropriate effective date for the grant of DIC benefits based on service connection for the cause of the Veteran's death. 38 C.F.R. § 3.816(d)(3). ORDER An effective date of April 1, 1985 for the award of DIC benefits based on service connection for the cause of the Veteran's death is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs