Citation Nr: 1630166 Decision Date: 07/28/16 Archive Date: 08/04/16 DOCKET NO. 13-14 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for dependency and indemnity compensation (DIC). 2. Whether new and material evidence has been received to reopen a claim for accrued benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Department of Veterans Affairs INTRODUCTION The Veteran had active military service from February 1967 to February 1970. He died in October 1983. The appellant is the Veteran's adult daughter. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2016, the appellant testified at a Central Office hearing. A transcript of that hearing is of record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a decision dated in July 1999, the Board denied the appellant's claim for entitlement to DIC and accrued benefits on the basis that the appellant was 26 years old at the time she filed her claim and that the benefits requested were not available to surviving children of a veteran after they reach the age of 23. The Board noted that as the appellant was beyond the age criteria for characterization as a child, she lacked standing to claim DIC or accrued benefits. The appellant did not appeal this decision. The appellant's application to reopen her claim of entitlement to DIC and accrued benefits was received in October 2010. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Additional evidence received since the July 1999 decision includes a Report of Confidential Social Security Benefit Information dated in November 2011 which indicates that the appellant was entitled to receive her father's SSA benefits from November 1983 and that she received SSA benefits until June 1988. If a claim is filed with Social Security Administration (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. 38 U.S.C. § 5105(b); 38 C.F.R. § 3.201. Any application form filed with SSA requesting survivor's benefits suffices to warrant an effective date for dependency and indemnity compensation benefits based on the date of the SSA application. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 114-119 (2009). The Board notes that the November 2011 Report of Confidential Social Security Benefit Information notes that the appellant became entitled to SSA child survivor's benefits and not that there was an application filed for one within a year of the Veteran's death. In this case, although there is an indication that she was receiving SSA child survivor benefits between November 1983 and June 1988, there is no actual evidence that a claim was filed on her behalf for SSA child survivor benefits within a year of the Veteran's death. This is important because VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to 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). A Nehmer class member is defined as a Vietnam veteran who has been diagnosed with a disorder presumptively-associated with herbicide exposure, to include ischemic heart disease; or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. Under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. Ischemic heart disease was included as a presumptive herbicide exposure related disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of August 31, 2010. However, District Court orders have created an exception to the generally applicable rules in 38 U.S.C.A. § 5110(g) and 38 C.F.R. § 3.114. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. That regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) 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 May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. In these situations, 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. 38 C.F.R. § 3.816(c)(1), (c)(2). Thus, if it can be determined that the an SSA claim was filed on the appellant's behalf for child survivor benefits within a year of the Veteran's death and that the Veteran died from a covered herbicide disease, a claim for DIC would have remained pending until adjudicated by the Board in July 1999. Thus, a claim for DIC for a covered herbicide disease would have been pending before VA on May 3, 1989. As such, the effective date of the award would be the date such claim. Therefore, the Board finds that additional development of the claim is warranted. Accordingly, the case is REMANDED for the following action: 1. SSA should be asked to provide VA with all records with regard to the appellant's child survivor benefits. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. 2. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the appellant and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).