Citation Nr: 1624724 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 07-18 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than January 21, 2004, for the award of dependence and indemnity compensation (DIC) benefits based upon a grant of service connection for the cause of the Veteran's death. 2. Entitlement to an effective date earlier than January 21, 2004, for the award of Chapter 35 eligibility for Dependents' Educational Assistance (DEA) based upon a grant of DIC benefits. ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1969, including an overseas tour of duty in Vietnam. He died in November 1991. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a June 2005 rating decision, the RO granted the appellant DIC benefits based upon a grant of service connection for the cause of the Veteran's death, and Chapter 35 Dependents' Educational Assistance (DEA) eligibility based upon a grant of DIC benefits, both effective January 21, 2005. The appellant disagreed with these assigned effective dates. During the course of her appeal, the RO revised the effective date for both awards to January 21, 2004. The appellant has continued her appeal with regard to the assignment of an effective date of January 21, 2004 for both awards. The Board previously remanded the appellant's case in January 2010 and June 2013 for additional evidentiary development. Such was achieved, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The Veteran died in November 1991 of small cell lung cancer; he served in Vietnam during the Vietnam War, and is presumed to have been exposed to herbicides during his service. 2. Effective June 9, 1994, lung cancer was added to 38 C.F.R. § 3.309 as a disease warranting presumptive service connection based on exposure to herbicides in Vietnam. 3. A December 11, 2015 letter from the Social Security Administration (SSA) is competent evidence demonstrating that the appellant filed claims for SSA survivorship benefits for the Veteran's children and for a lump sum death payment as the widow of the Veteran shortly after the Veteran's death in November 1991; this information reflects at least one claim that is considered a joint claim for purposes of entitlement to VA death benefits. 4. VA received a more recent application for DIC compensation benefits from the appellant on January 21, 2005. 5. In a June 2005 rating decision, the RO granted service connection for the cause of the Veteran's death based on findings that he had lung cancer which warranted presumptive service connection, and was a cause of his death. In the same decision, the RO granted Chapter 35 eligibility for Dependents' Educational Assistance. Both awards were made effective January 21, 2004. CONCLUSIONS OF LAW 1. An earlier effective date of November 1, 1991 is warranted for the award of DIC based on a grant of service connection for the cause of the Veteran's death. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.153, 3.400, 3.816 (2015). 2. An earlier effective date of November 1, 1991 is warranted for the award of Chapter 35 eligibility for Dependents' Educational Assistance. 38 U.S.C.A. § 3501 (2014); 38 C.F.R. §§ 21.3021(a), (o) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant contends that the effective date of the award of DIC benefits should date back to 1991, the year of the Veteran's death. The Board agrees, and the assignment of an effective date of November 1, 1991 for both the award of DIC benefits and Chapter 35 Dependents' Educational Assistance eligibility constitutes a full grant of the benefits sought on appeal. Inasmuch as the benefits sought are being granted, there is no reason to belabor the impact of the Veterans Claims Assistance Act of 2000 (VCAA) on this matter, since any error in notice or duty to assist omission is harmless. A. DIC Generally, the effective date of an award based on a claim for DIC benefits 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, if the claim for entitlement to DIC benefits is filed with VA within one year of the Veteran's death and the claim is ultimately granted, then the effective date will be the first day of the month on which the Veteran died. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). The Board initially observes that, per her own report, the appellant filed an application with VA for burial benefits in connection with the Veteran's death. Her application for burial benefits cannot be interpreted as a claim for service connection for the cause of the Veteran's death, as a claim for burial benefits is specific to a completely different, one-time payment. Additionally, the appellant has explained that she called VA at times during the years following the Veteran's death to inquire about additional benefits for which she may be entitled, but was told that she was simply not eligible. While the Board in no way doubts that the appellant made these calls, mere inquiries into potential eligibility cannot be interpreted as claims for VA benefits. As the issue on appeal is being granted on a different basis, there is no need to further discuss, or explain these matters further at this time. If a claim is filed with SSA on a form jointly prescribed by the Secretary and the commissioner of SSA, such application "shall be deemed to be an application for benefits" to both agencies on the date the application is filed. Pursuant to 38 C.F.R. § 3.153, an application for Social Security Administration (SSA) benefits is considered a claim for death benefits and is deemed to have been received in the Department of Veterans Affairs 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." Jointly prescribed forms include the VA survivor benefit applications and the SSA survivor applications (Forms SSA-4, 5, 7, and 10). In discussing the language of 38 C.F.R. § 3.153, the Court of Appeals for Veterans Claims (the Court) has determined that a "wholly unclear picture" exists as to what constitutes a "jointly prescribed form." As a result, the Court held that any claim sufficient to reflect an intent to apply for survivor's benefits that is filed with SSA will suffice to establish the effective date for DIC. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 119 (2009). Here, the appellant asserts that she filed her SSA claim for survivor's benefits at the time of, or shortly after the Veteran's death. See a February 2007 RO hearing transcript, at 3 (explaining that she applied for SSA survivorship benefits for her children, which they received until they reached age 18, but SSA no longer had the application on file). Indeed, the claims-file does not contain a copy of the appellant's SSA application itself. In fact, several attempts to obtain relevant records from the SSA have proven fruitless. In any event, an SSA representative did contact VA's Evidence Intake Center in a December 11, 2015 letter explaining that, upon the death of the Veteran in November 1991, both of the Veteran's and appellant's minor dependent children received SSA payments at the survivors rate until they graduated high school, and that the appellant herself received a one-time payment of $255 as a lump sum death benefit in December 1991. The appellant noted this one-time $250 dollar payment from the SSA on her January 21, 2005 application for DIC. The Board finds that this December 11, 2015 letter from SSA, which clearly articulates that the appellant and her children were paid SSA survivor's benefits immediately following the Veteran's death in November 1991, favors a finding that the appellant filed for survivorship benefits with SSA within a year of the Veteran's death. As such, per the provisions of 38 C.F.R. § 3.153 described above, the appellant's application for SSA survivor's benefits is also deemed to be an application for DIC benefits with VA. There was no VA adjudication of the claim for survivor's benefits prior to the June 2005 RO rating decision, which awarded DIC benefits on the basis of granting service connection for the cause of the Veteran's death (recognizing lung cancer as the cause of the Veteran's death, and its presumed association with in-service exposure to herbicides under 38 C.F.R. § 3.309(e)). With respect to claims concerning effective dates for the award of service connection for diseases presumed to have been caused by herbicide or Agent Orange exposure, VA has issued a special regulation to implement orders of a United States 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). In pertinent part, 38 C.F.R. § 3.816 provides that, if a "Nehmer class member" is entitled to DIC for a death due to a "covered herbicide disease," and that class member's claim for cause of death or other DIC benefits was received by VA between May 3, 1989, 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). A "Nehmer class member" is defined to include a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a "covered herbicide disease." 38 C.F.R. § 3.816(b)(1)(ii). "Covered herbicide disease" means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in § 3.309(e). 38 C.F.R. § 3.816(b)(2). The appellant is a "Nehmer class member" as she is the Veteran's surviving spouse of a deceased Vietnam veteran who died from lung cancer, which as of June 6, 1994, is recognized as a "covered herbicide disease" by VA under the provisions of 38 C.F.R. § 3.309(e). 59 Fed. Reg. 29,723 (1994). In this situation, where the Board has determined that the DIC claim (as submitted to SSA) from the Nehmer class member was received after May 3, 1989 and before the effective date of the pertinent liberalizing law regarding respiratory cancer (June 6, 1994), and where the DIC claim was filed within a year following the Veteran's 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)(3). Accordingly, the effective date of November 1, 1991 is the appropriate effective date for the award of service connection for DIC benefits, based upon a grant of service connection for the cause of the Veteran's death. The appeal is accordingly granted. B. Chapter 35 eligibility to Dependents' Educational Assistance (DEA) The eligibility date for DEA benefits is the date on which an individual becomes an eligible person as defined in 38 C.F.R. § 21.3021(a). 38 C.F.R. § 21.3021(o) (2015). The date that the appellant and the Veteran's children became "eligible" for DEA benefits pursuant to 38 C.F.R. § 21.3021(a) is November 1, 1991, which as discussed above, is the date service connection for the cause of the Veteran's death is established. The law is dispositive of the issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Thus, an effective date of November 1, 1991 for eligibility for DEA benefits is also warranted. ORDER An effective date of November 1, 1991 for the award of DIC based on a grant of service connection for the cause of the Veteran's death is granted. An effective date of November 1, 1991 for the award of Chapter 35 eligibility for Dependents' Educational Assistance is granted. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs