Citation Nr: 1609942	
Decision Date: 03/11/16    Archive Date: 03/22/16

DOCKET NO.  12-17 173	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for heart disease for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S.

2.  Entitlement to an effective date prior to November 1, 2008, for the award of service connection for the cause of the Veteran's death.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from April 1955 to April 1963 and from March 1964 to March 1976.  He died in November 2008.  The appellant is his surviving spouse.  

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

The appellant did not file, and the RO did not rule on a motion for substitution.  This is nonconsequential, however, as the instant matter does not involve a claim for accrued benefits under 38 C.F.R. § 3.1000.  See 38 U.S.C.A. § 5121A (West 2014); 38 C.F.R. § 3.1010 (2015).  In fact, it does not appear that the Veteran had a claim of service connection for heart disease pending at the time of his death.  See 38 C.F.R. § 3.1000(d)(4)-(5) (2015).

The appellant testified in a hearing before the Board from the RO in October 2013.  She was sent notice in February 2014 that a transcript of that hearing could not be produced due to technical difficulties.  She was offered the opportunity to request a new hearing, which she elected in April 2015.  

In June 2015, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for purposes of scheduling the Board hearing.  
Accordingly, the appellant testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in November 2015.  A transcript of the hearing has been associated with the claims file.  


FINDINGS OF FACT

1.  The Veteran did not have service in the Republic of Vietnam and is, therefore, not a Nehmer class member.

2.  The current effective date of November 1, 2008, represents the first day of the month in which the Veteran's death occurred where the appellant's claim was received within one year after the date of his death. 


CONCLUSIONS OF LAW

1.  The criteria for award of service connection for heart disease for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S. are not met.  38 U.S.C.A. § 501 (West 2014); 38 C.F.R. § 3.816 (2015).

2.  The criteria for assignment of an effective date earlier than November 1, 2008, for the award of DIC benefits have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.312 3.400 (2015).







REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Retroactive Benefits

The appellant contends that the Veteran's heart disease was due to Agent Orange exposure and, therefore,  retroactive benefits are warranted pursuant to the Nehmer decision.  

This is not a claim for accrued benefits.  The RO, on its own initiative, sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002).  The provisions of 38 U.S.C. 5121(c) and §3.1000(c), which require survivors to file claims for accrued benefits, do not apply to payments under 38 C.F.R. § 3.816, regarding awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure.  See 38 C.F.R. § 3.816(f)(2) (2015).  

(1) Applicable Law

Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease.  See 38 C.F.R. § 3.816.  

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.  38 C.F.R. § 3.816(b)(1).  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.  38 C.F.R. § 3.816(c)(2).  

The covered herbicide diseases are listed in 38 C.F.R. § 3.309(e).  See 38 C.F.R. § 3.816(b)(2).  This list includes ischemic heart disease, which was added to the list of covered herbicide diseases effective from August 31, 2010.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202 (Aug. 31, 2010).  

(2)  Discussion

In this case, after careful consideration, the Board finds that the appeal must be denied as the Nehmer decision is not applicable in this case.  More specifically, the Veteran was not a Nehmer class member because he did not serve in the Republic of Vietnam.  See 38 C.F.R. § 3.816((b)(1); Nehmer, 284 F. 3d 1158.

The Nehmer decision, and the corresponding regulations set forth in 38 C.F.R. § 3.816, only apply to "Vietnam veterans," which does not include veterans with service outside of Vietnam, including in the United States or the Korean Demilitarized Zone (DMZ).  See 38 C.F.R. § 3.816(b)(1)(i); see also Herbicide Exposure and Veterans With Covered Service in Korea,76 Fed. Reg. 4245 (Jan. 25, 2011) (amending VA regulations regarding herbicide exposure of certain veterans who served in or near the Korean demilitarized zone and regulations regarding spina bifida in their children, but not the regulations pertaining to Nehmer); accord VA Training Letter 10-04, attachment #2, Eligibility Requirements for Retroactive Payment Purposes (defining Nehmer class members as those who served in the Republic of Vietnam or on "ships associated with service in Vietnam and exposure to herbicide agents"); Nehmer Supplemental Training, Training Letter 10-04 Addendum: Prepared by the Nehmer Project Management & Policy Team May 3, 2013 (advising that "If review of the Veteran's service dates and locations was done in the past claims and file shows VBA already has been notified of Thailand, Korea or locations other than Republic of Vietnam (RVN), there is no need to re-develop even if granted s/c due to herbicide exposure previously.  Nehmer class members can only include RVN service members.").  

In this case, the appellant maintains that the Veteran was exposed to Agent Orange while serving in the Korean DMZ and in California.  Board Hr'g Tr. 3.  She also maintains that he first starting have symptoms of heart disease during service.  See Board Hr'g Tr. 4.  Regardless of whether the Veteran may have had exposure in Korea or in California and regardless of whether he may have had symptoms during service, the central question in this appeal is whether he set foot in Vietnam.  On this question, the facts are not in dispute in showing that he did not set foot in Vietnam.  The appellant does not contend that he set foot in Vietnam, and the RO confirmed with the service department in June 2011 that he did not have service in Vietnam.  

Because the Veteran was not a Nehmer class member, retroactive benefits cannot be assigned on this basis.  See 38 C.F.R. § 3.816.  Because the appeal is limited in scope to this question and it is decided on the undisputed facts, it is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application.  Likewise, VA's duties to notify and assist are not applicable under such circumstances.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 

B.  Earlier Effective Date

The appellant also contends that an earlier effective date should be awarded for DIC benefits.  The current effective date is November 1, 2008.  




(1) Applicable Law

The effective date of an award based on an original claim or a claim reopened after final adjudication 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); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter.  See 38 C.F.R. § 3.400(r). 

The surviving spouse of a veteran who has died from a service-connected disability after December 31, 1956, may be entitled to DIC benefits.  38 U.S.C. §§ 1310, 1311.  A veteran's death will be considered service connected where a service-connected disability was either the principal or a contributory cause of death.  38 C.F.R. § 3.312(a).  Further,  Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death.  Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.  38 C.F.R. § 3.313(c)(3).

If a claimant files an application for dependency and indemnity compensation benefits within one year after the veteran's death, then the effective date is the first day of the month in which the veteran died.  38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2).  If no such application is filed or could be construed to have been filed within one year after the veteran's death, then the effective date will be the date of receipt of the claim.  38 U.S.C.A. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2).

(2) Discussion

The appellant filed an original application for DIC on November 17, 2008.  This claim was granted in a January 2009 rating decision.  Notice of this rating decision was mailed to the appellant in May 2009.  She did not then initiate an appeal of that decision.  Thus, the appeal for an earlier effective date would need to be dismissed as a matter of law under Rudd v. Nicholson, 20 Vet. App. 296 (2006).  

Even if the appeal was not a freestanding claim, there is no basis in law or fact to grant an earlier effective date.  

First, the January 2009 rating decision granted service connection for the cause of the Veteran's death effective from November 1, 2008.  (Notification of this decision was mailed to the appellant several months later in May 2009.)  The RO granted the claim on the basis that the Veteran "was 100 percent disabled from a disease involving an active process affecting a vital organ, [so] he is considered to have been debilitated at the time of death."  The effective date was assigned from November 1, 2008.  That date represents the first day of the month in which the Veteran's death occurred where her claim was received within one year after the date of his death.  As a matter of law, no earlier effective date can be assigned.  See 38 C.F.R. § 3.400(c)(2).  

Second, the RO sent the appellant a letter in March 2011 explaining that it was going to review the matter pursuant to Nehmer v. Veterans Administration of the Gov't of the U.S., 284 F. 3d 1158 (9th Cir. 2002).  However, as explained herein above, the Veteran is not a Nehmer class member and, therefore, there is no basis to consider 38 C.F.R. § 3.816.  

As a final matter, the Board notes that it not materially in dispute that entitlement to DIC had arisen by November 1, 2008, as it was found that the Veteran had service-connected disabilities rated at 100 percent disabling, including from a disease involving an active process affecting a vital organ.  

The date of claim under these circumstances is fixed on the first day of the month in which the Veteran's death occurred where the claim was received within one year after the date of his death, which, in this case, is November 1, 2008.  Thus, the Board is unable to assign an effective date earlier than November 1, 2008, for the award of DIC benefits.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(c)(2).  As the material facts are undisputed, the appeal must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions as set forth in 38 U.S.C.A. § 5107(b) are not for application.  Likewise, VA's duties to notify and assist are not applicable under such circumstances.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 


ORDER

Entitlement to service connection for heart disease for the purpose of retroactive benefits under Nehmer v. Veterans Administration of the Gov't of the U.S., is denied. 

Entitlement to an effective date prior to November 1, 2008, for the award of service connection for the cause of the Veteran's death, is denied



____________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs