Citation Nr: 1754512 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-39 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to July 24, 2005 for the grant of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, Raul Zapata ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who served on active duty from August 1950 to September 1970. The Veteran died in September 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 decisional letter by the St. Paul, Minnesota Regional Office (RO) that denied an effective date prior to July 24, 2006 for grant of service connection for the cause of the Veteran's death. An interim (November 2014) rating decision found the June 2007 rating decision that granted service connection for the cause of the Veteran's death was based, in part, on clear and unmistakable error (CUE), amended the decision, and assigned July 24, 2005 as the effective date of service connection for the cause of the Veteran's death. In September 2017, a videoconference hearing was held before the undersigned; a transcript is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. An unappealed August 2001 rating decision denied the appellant service connection for the cause of the Veteran's death; CUE in that decision has not been alleged. 2. A presumption of service connection for lung cancer based upon exposure to herbicides in Vietnam became effective in June 1994; a requirement that respiratory cancer become manifest within 30 years of a veteran's departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides agents was removed effective January 1, 2002. 3. After the August 2001 rating decision, the first communication from the appellant evidencing an intent to reopen a claim of service connection for the cause of the Veteran's death was received on July 24, 2006. 4. An effective date of July 24, 2005 has been assigned for the Veteran's award of service connection for the cause of the Veteran's death. CONCLUSION OF LAW An effective date prior to July 24, 2005, for the grant of service connection for the cause of the Veteran's death is not warranted. 38 U.S.C. §§ 5101, 5109A, 5110, 7105 (2012); 38 C.F.R. §§ 3.114, 3.152, 3.155, 3.400, 3.816, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran served in the Republic of Vietnam during the Vietnam War, from January 1968 to March 1969, and is presumed to have been exposed to herbicide agents in the course of such service. He died in September 2000. His death certificate shows that the immediate cause of his death was lung cancer with metastases to the spleen and bladder. The appellant filed a claim for service connection for the cause of the Veteran's death in September 2000. An unappealed August 2001 rating decision denied service connection for the cause of the Veteran's death based on a finding that the lung cancer was first diagnosed in August 2000 and therefore had not manifested within 30 years after his last exposure to herbicide agents. The Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001) removed the requirement that respiratory cancer become manifest within 30 years of a veteran's departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides agents, effective January 1, 2002. See 68 Fed. Reg. 34,539 (June 10, 2003). The appellant filed a claim to reopen the matter of service connection for the cause of the Veteran's death on July 24, 2006. A June 2007 rating decision granted service connection for the cause of the Veteran's death, effective July 24, 2006. The November 2014 rating decision amended the June 2007 rating decision based on a finding that an effective date of July 24, 2005 was warranted for the grant of service connection for the cause of the Veteran's death under 38 C.F.R. § 3.114, which applies to the effective dates of awards made pursuant to a liberalizing law. At an April 2015 RO hearing, the appellant's representative argued an effective date of September 12, 2000 was warranted under Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002). At the September 2017 Board hearing, the appellant's representative argued that an effective date of January 1, 2002 was warranted. She asserted that the appellant was unaware of the liberalizing law that eliminated the 30-year requirement for presumptive service connection of respiratory cancer. Legal Criteria Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). 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). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 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. 38 C.F.R. § 3.114(a)(3). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease or a surviving spouse of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). The term "covered herbicide disease" includes respiratory cancer. 38 C.F.R. § 3.816(b)(2). The record reflects that the Veteran served in the Republic of Vietnam and died from respiratory cancer. Accordingly, the appellant is a "Nehmer class member" as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for such benefit pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(d). Under 38 C.F.R. § 3.816(d)(2), if the class member's claim was received 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, except if the claim was received within one year from the date of the veteran's death, in which case the effective date shall be the first day of the month in which the death occurred. See 38 C.F.R. § 3.816(d)(2), (3). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis The appellant did not appeal the August 2001 rating decision that denied her service connection for the cause of the Veteran's death, and new and material evidence was not received within the following year, and that decision is final based on the evidence then of record and is not subject to revision in the absence of CUE in the decision. 38 U.S.C.A. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). CUE in the August 2001 rating decision has not been alleged, and there is no legal authority for the Board to set aside the finality of that decision in the absence of an allegation (and showing) of CUE in that decision. The Board acknowledges that the appellant is a Nehmer class member and that she filed the initial claim for service connection for the cause of the Veteran's death in September 2000, which falls between 1989 and January 1, 2002, when the requirement that respiratory cancer become manifest within 30 years of a veteran's departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides agents was removed. However, respiratory cancers were added to the presumptive list under 38 C.F.R. § 3.309(e) in 1994. The January 2002 change in the law did not involve adding lung cancer to the list of presumptive conditions associated with herbicide agent exposure, but rather it extended the manifestation period under an existing presumption. Consequently, the appellant filed the claim after the effective date of the regulation establishing a presumption of service connection for the covered herbicide disease and the above-outlined liberalizing provisions under Nehmer do not apply in the instant case. As is indicated above, the effective date of an award of service connection is based on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde, 12 Vet. App. at 382. Accordingly, the critical question remaining in this matter is whether or not the appellant filed a claim seeking to reopen the claim of service connection for the cause of the Veteran's death between August 2001 and July 24, 2005. A close review of the record found that the first communication from the appellant to VA seeking to reopen the claim of service connection for the cause of the Veteran's death was received July 24, 2006. However, as service connection for the cause of the Veteran's death was granted pursuant to a liberalizing law (Veterans Education and Benefits Expansion Act of 2001), 38 C.F.R. § 3.114 is for application, and the November 2014 rating decision assigned July 24, 2005 as the effective date for service connection for the cause of the Veteran's death because the appellant's claim was reviewed more than one year after the effective date of the liberalizing law. An effective date prior to July 24, 2005 is not permitted under 38 C.F.R. § 3.114(a)(3) because a claim was not received within one year of when the liberalizing law took effect in 2002. The Board is sympathetic to the appellant's situation and recognizes the unfortunate circumstances of this case, but is bound by governing law and regulations, and has no authority to awards benefits not authorized by governing law. Because the appellant is not shown to have filed a formal or informal application for service connection for the cause of the Veteran's death between August 2001 and July 24, 2006, VA is precluded from granting an effective date for the grant of of service connection for the cause of the Veteran's death prior to July 24, 2005. As the RO has already assigned the earliest possible effective date provided by law given the undisputed dispositive facts in this case, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In light of the foregoing, the Board finds that an effective date prior to July 24, 2005 for the grant of service connection for the cause of the Veteran's death is not warranted, and that the appeal in this matter must be denied. ORDER An effective date prior to July 24, 2005, for the grant of service connection for the cause of the Veteran's death is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs