Citation Nr: 1623235 Decision Date: 06/10/16 Archive Date: 06/21/16 DOCKET NO. 11-28 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than March 5, 2001, for the grant of Dependency and Indemnity Compensation (DIC) benefits. ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served in the Army from May 1968 to April 1974. He died in March 1982. The appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 decision issued by the Department of Veterans Affairs (VA) Pension Management Center in Milwaukee, Wisconsin that denied entitlement to an effective date earlier than March 5, 2001, for the grant of DIC benefits. In April 2016, the appellant withdrew her request for a Board hearing. There remains no outstanding request for a Board hearing. This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. In March 1982, the appellant filed a claim for death pension benefits; she indicated that she was not claiming service connection for the cause of the Veteran's death. 2. A July 1982 VA decision denied entitlement to death benefits, including service connection for the cause of the Veteran's death; the appellant was notified of the decision and of her appellate rights, but did not appeal. 3. Following the July 1982 VA decision, no claim seeking death benefits was received by VA until March 5, 2002; at that time the appellant again indicated that she was not claiming entitlement to DIC benefits, but the matter was reasonably raised by the record. 4. Entitlement to DIC benefits was thereafter denied in a March 2007 rating decision; the appellant submitted new and material evidence within one year of the rating decision, and the claim remained pending until entitlement to DIC benefits was granted in a February 2009 rating decision. 7. The February 2009 rating decision assigned an effective date of September 29, 2006, for the grant of DIC benefits; thereafter, a March 2009 VA decision granted entitlement to an effective date of March 5, 2001. CONCLUSIONS OF LAW 1. The July 1982 and March 2002 RO decisions that denied entitlement to DIC benefits are final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. The criteria for an effective date prior to March 5, 2001, for the grant of entitlement to DIC benefits under 38 U.S.C.A. § 1313 have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.400, 3.816, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Under the VCAA, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here the appellant is appealing the effective date assigned as to the grant of DIC benefits. In this regard, because the February 2009 and March 2009 rating decisions granted entitlement to DIC benefits, such claim is now substantiated. Her disagreement as to the effective date assigned in the does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). The Board notes that she received proper notice in relation to the underlying claim for DIC benefits. The adjudication of a claim for an earlier effective date for DIC benefits is typically based upon evidence already in the claims file, and typically does not rely on medical evidence developed after the award of DIC benefits. In this case, the record shows that all pertinent evidence has been obtained. The appellant has withdrawn her request for a Board hearing. The Board consequently finds that VA's duty to assist has been fulfilled. The Board therefore finds that no additional notice or development is necessary prior to making a determination on the appellant's appeal. Legal Criteria Effective dates for the award of VA benefits are generally governed by 38 U.S.C.A. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, DIC, or pension, shall be 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). In cases where the Veteran died in service, benefits may begin the first day of the month fixed by the Secretary as the date of actual or presumed death, if the claim is received within one year after the date the initial report of actual death or finding of presumed death was made. 38 C.F.R. § 3.400(c). The laws and regulations governing effective dates establish that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be 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). However, in the case of claims for DIC benefits, the effective date will be the first day of the month in which the death occurred if the application is received within one year from the date of death. 38 U.S.C.A. § 5110(d). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). Analysis On March 9, 1982, the appellant filed an Application for Dependency and Indemnity Compensation or Death Pension by Widow/er or child, VA Form 21-534. She indicated that she had not filed a claim for compensation based on the death of the Veteran. See VA Form 21-534, questions 41-44. In July 1982, the VA sent the appellant a letter, indicating that her claim for "death benefits" had been disallowed, because the evidence did not establish that the Veteran's death was due to a service-connected disability, even though, as noted above, the appellant indicated in her March 1982 application that she was not filing a claim based on the death of the Veteran. Nevertheless, the notice also indicated that the appellant's income exceeded the maximum income amount to receive benefits. See July 1982 notice letter, VA Form 21-8332a-2. The appellant did not file an appeal and this decision became final. See 38 U.S.C.A. § 7105. On March 5, 2002, the appellant filed an Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), VA Form 21-534. She indicated at that time that she was not claiming that the cause of the Veteran's death was due to service. See March 2002 VA Form 21-534, question 10. In a December 2002 letter, the VA notified the appellant that her "reopened claim for death pension" was denied. See December 2002 notice letter. Once again, the appellant did not file an appeal and this decision became final. On September 29, 2006, the appellant filed another Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable), VA Form 21-534. For the first time, she indicated that she was claiming service connection for the cause of the Veteran's death. See September 2006 VA Form 21-534, question 7. In a March 2007 rating decision, the RO denied service connection for the cause of the Veteran's death, because no new and material evidence had been received to reopen the claim, which was previously denied in an unappealed decision in 1982, which she was notified of in July 1982. In a July 2007 statement, the appellant submitted the Veteran's medical records, which showed that he died from metastatic carcinoma and oat cell carcinoma, both related to lung cancer, which she argued was related to his exposure to Agent Orange during active duty in Vietnam. In a February 2009 rating decision, the RO granted service connection for the cause of the Veteran's death, and entitlement to Dependent's Educational Assistance (DEA) benefits. In a March 2009 deferred rating decision, the RO granted the appellant an effective date of March 5, 2001, for entitlement to DIC benefits. The RO explained that the appellant filed a VA Form 21-534 on March 5, 2002, and although she did not indicate that she was requesting consideration for service connection for the cause of the Veteran's death, a VA Form 21-534 is not only a claim for pension, but also a claim for DIC and accrued benefits. The RO noted further that the evidence of record at that time showed that the Veteran died from metastatic carcinoma, oat cell carcinoma (generally always of the lung), and based on the change in law, effective June 9, 1994, which added respiratory cancers to the disabilities associated with exposure to Agent Orange, entitlement to DIC should have been considered. Therefore, since DIC was not properly considered at the time of the appellant's claim on March 5, 2002, the proper date of the grant of DIC should have been March 5, 2001, one year prior to receipt of her claim based on liberalizing law, since the Veteran had the lung cancer prior to the change in law. However, the RO also noted that the decision in Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.) did not apply in this case since the appellant's prior claim received in March 1982 was not considered and denied during the Nehmer period of September 25, 1985 to May 3, 1989. In March 2010, the appellant filed a claim for an earlier effective date for DIC benefits, arguing that the effective date for the grant of DIC benefits should be in 1982, when she filed her original claim. The RO denied the appellant's claim in a March 2010 rating decision. The appellant has appealed this issue. In this case, since the Veteran did not file a timely notice of disagreement with the RO's July 1982 or December 2002 decisions, they became final, and are not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 5109A; 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006). The appellant has not alleged that there was CUE in the July 1982 or December 2002 rating decisions. The earliest date after the December 2002 rating decision that the appellant expressed intent to reopen her claim for DIC benefits is September 29, 2006. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400(r). Thus, under ordinary circumstances, the appropriate effective date for the appellant's DIC benefits would be September 29, 2006, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates would be controlling. 38 C.F.R. § 3.400. However, as noted in the RO's March 2009 decision, the evidence of record at the time of the appellant's March 5, 2002 claim showed that the Veteran died from metastatic carcinoma, oat cell carcinoma (generally always of the lung), and although the appellant had not specifically indicated an intent to apply for DIC benefits based on the cause of the Veteran's death, based on the change in law, effective June 9, 1994, which added respiratory cancers to the disabilities associated with exposure to Agent Orange, entitlement to DIC, and not just entitlement to non-service-connected death pension benefits, should have been considered at that time. 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. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). In order for the claimant to be eligible for a retroactive payment, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. If a claim is reviewed on the initiative of VA within one year from the effective date of the 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 at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). Also as noted by the RO in the March 2009 decision, in order to receive DIC benefits from June 9, 1994 as a result of the change in law that added lung cancer to the list of presumptive diseases for Agent Orange exposure, a claim for service connection for the cause of death must have been received within one year of the law change or by June 9, 1995. The appellant did not file another claim for DIC benefits following the July 1982 denial until March 2002. Therefore, an earlier effective date of June 9, 1994 is also not warranted. However, given that DIC should have been considered at the time of the appellant's claim on March 5, 2002, the proper date of the grant of DIC is March 5, 2001, one year prior to receipt of her claim based on liberalizing law, since the evidence of record shows that the Veteran had the lung cancer prior to the change in law. Because this matter concerns a grant of DIC benefits based on service connection for the cause of the Veteran's death, due to lung cancer, as a disease presumptive to herbicide exposure, the Board shall consider potentially applicable effective date criteria to include those pursuant to the decision in Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). Effective-date rules required by orders of a United States District Court in the Nehmer class-action case are addressed in 38 C.F.R. § 3.816 (2015). (1) A Nehmer class member means: (i) A Vietnam veteran who has a covered herbicide disease; or (ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. (2) A covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. Those diseases include respiratory cancers, including lung cancer. Under 38 C.F.R. § 3.816(c), if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in 38 C.F.R. § 3.816(c)(3). A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) 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, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) 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 regulation 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. (3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. The Board finds that the appellant's claim for DIC benefits does not fall within the criteria for an effective date prior to March 5, 2001 under other provisions of the Nehmer criteria since she did not have a claim for DIC benefits denied between September 25, 1985, and May 3, 1989; she did not have a claim for DIC benefits pending before VA on May 3, 1989, or received by VA between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for lung cancer, June 9, 1994; and since her original claim for DIC benefits was not received within one year from the date of the Veteran's separation from service. For the reasons noted above, the Board finds that the appellant's claim for an effective date earlier than March 5, 2001, for the grant of DIC benefits must be denied. See 38 C.F.R. § 3.400(q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). ORDER Entitlement to an effective date earlier than March 5, 2001 for the grant of DIC benefits is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs