Citation Nr: 1802358 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-16 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than July 2, 2010, for the grant of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney-at-Law ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from June 1970 to April 1973. The Veteran is deceased as of July 1995, and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2013, the Board remanded the appellant's claim for additional development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the appellant's claim without prejudice to her. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. In July 1995, the Veteran died of cardiac hypertrophy. 2. In August 1995, within one year of the Veteran's death, the appellant filed a claim with Social Security Administration (SSA) with death benefits and received a lump sum death payment. 3. In July 2010, the appellant filed a claim for dependency and indemnity compensation (DIC) based upon service connection for the cause of the Veteran's death, which was granted in a February 2012 rating decision. 4. Resolving reasonable doubt in the appellant's favor, the appellant's August 1995 claim with the SSA was sufficient to constitute a joint claim for the purpose of establishing the effective date of the appellant's entitlement to DIC. CONCLUSION OF LAW The criteria for an effective date of July 1, 1995, for the grant of service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 5103, 5105, and 5110 (2012); 38 C.F.R. §§ 3.153, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant argues that an effective date prior to July 2, 2010 is warranted for the grant of service connection for the cause of the Veteran's death based on her claim that she filed with the SSA for death benefits in August 1995 after the Veteran's death in July of 1995. Generally, the assignment of an effective date is governed by 38 U.S.C. § 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 for said benefits. 38 U.S.C. § 5110 (a). Also, the effective date of an award of death compensation/DIC for which the application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C. § 5110 (d). Furthermore, subject to the provisions of 38 U.S.C. § 5101 , where compensation, DIC, or pension benefits are awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997); see also 38 C.F.R. § 3.400(c)(2) (clarifying that the effective date for service-connected death after separation from service is the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of death; otherwise, it is the date of receipt of claim). Under 38 C.F.R. § 3.153, an application on a form jointly developed by the Social Security Administration (SSA) and VA, which is filed at SSA on or after January 1, 1957, will be considered a claim for VA death benefits. Such application also will be considered to have been received by VA as of the date of receipt by SSA. 38 C.F.R. § 3.153. An exception to the regulations regarding effective dates for disability compensation involves members of the Nehmer class under 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Under the regulation, a Nehmer class member includes the surviving spouse of a veteran who died from a covered herbicide disease, such as ischemic heart disease in the present case. A "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. 38 C.F.R. § 3.816 (b)(2). In accordance with Nehmer and its implementing regulation, if a Nehmer class member is entitled to DIC benefits, and DIC had been previously denied in a decision issued between September 25, 1985, and May 3, 1989, the effective date of the award will be the date VA received the claim on which such prior denial was based or the date the death occurred, whichever is later, unless the claim was received within one year from the date of the veteran's death, in which case the effective date will be "the first day of the month in which the death occurred." 38 C.F.R. § 3.816(d)(1), (3). If a claim for DIC benefits "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 herbicide disease that caused the death," the effective date for the award of DIC will be the date such a claim was received or the date the death occurred, whichever is later, unless the claim was received within one year from the date of the veteran's death, in which case the effective date will be "the first day of the month in which the death occurred." 38 C.F.R. § 3.816(d)(2), (3). If the requirements of section 3.816(d)(1) and (2) are not met the effective date of the award shall be determined in accordance with sections 3.114 and 3.400. 38 C.F.R. § 3.816(d)(4). The effective date of the regulation that added ischemic heart disease to the list of diseases for which the VA Secretary has determined that there exists an etiological relationship to herbicide exposure (and are, thus, subject to presumptive service connection on the basis of such exposure) is August 31, 2010. 75 Fed. Reg. 53,202. In the current case, the facts are not in dispute. The Veteran served in the Republic of Vietnam and, therefore, his exposure to herbicide agents was conceded. The Veteran died in July 1995 of cardiac hypertrophy. However, the Medical Examiners autopsy report also noted he had mild calcific atherosclerosis of all the coronary arteries and mild atherosclerotic heart disease, which the RO noted fits within VA's definition of ischemic heart disease for purposes of presumptive service connection due to exposure to herbicide agents. Consequently, the RO granted service connection for the cause of the Veteran's death under 38 C.F.R. § 3.307(a)(6) and § 3.309(e) since ischemic heart disease had been added as a presumptive disease related to herbicide agent exposure. In accordance with 38 C.F.R. § 3.816(d)(2), the RO assigned an effective date of July 2, 2010, the date of the appellant filed her claim for DIC with VA. The appellant disagreed with the date of claim being the effective date of the grant of DIC contending that she filed a claim for survival benefits with SSA in August 1995 and, therefore, that should actually constitute her date of claim, not the July 2010 application, pursuant to 38 C.F.R. § 3.153, and, therefore, the effective date should be based upon the Veteran's date of death. In March 2015, the Board remanded that appellant's claim so that an attempt could be made to obtain the appellant's application with SSA or to at least verify whether she applied for SSA benefits on a form prescribed by 38 C.F.R. § 3.153. In April 2015, the RO requested such records from SSA, and SSA responded that it did not have any records for the appellant as they are presumed destroyed but their records indicate she applied for the lump sum death payment on August 15, 1995. The Board notes that the current VA Adjudication Procedure Manual (M21-1) provides that, under 38 CFR 3.153, an Application for Survivors Benefits (Form SSA-24) filed as a result of the death of a veteran with the SSA on or after January 1, 1957, shall be considered as a claim for VA survivors benefits, even if VA Form 21-4182, Application for Dependency and Indemnity Compensation or Death Pension is not received by VA. See M21-1, Part IV.iii.3.A.3.a. However, the Court of Appeals for Veterans Claims (Court) has held that neither the VA regulations nor the prior versions of the M21-1 contained any specifically prescribed form or forms agreed upon by the VA and SSA as required by 38 C.F.R. § 3.153. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 118-19 (2009) (finding that there was a "wholly unclear picture of what constitutes a 'jointly prescribed form'" based on the M21-1 sections provided to the Court, which did not specify a particular SSA form; the Secretary's indication at oral argument that there had never been an individual 'jointly prescribed form' promulgated between VA and SSA; the Secretary's acknowledgement that, in practice, a claim for survivor's benefits can be filed on any form when the applicant reflects an intent to seek such benefits; and the Secretary's failure to cite to any SSA regulation as to what the 'joint prescribed form' might be along with advising that SSA has moved away from using paper forms to taking claims in-person or by telephone); Kay v. Principi, 16 Vet. App. 529, 533 (2002) (finding that the Board failed to address the applicable M21-1 provisions, which provided a broad definition for the types of applications that are considered joint applications for VA and SSA benefits, as well as improperly relying on current SSA forms thereby assuming that the forms for SSA death benefits were the same at the time of the appellant's claim in 1981 as they were at the time of its decision). The appellant related in her statement submitted with her attorney's November 2016 brief that she believes she filed for all available benefits to her in August 1995, but then submitted the copy of the SSA application for the lump sum death payment, which she states is what she believed the application looks like. SSA was only able to confirm that their records indicate that the appellant filed an application for the lump sum death payment in August 1995. The actual application she filed is not available for review, presumably having been destroyed due to the lapse of time. Thus, the Board finds the record is unclear as to what application the appellant actually filed. Nevertheless, the Board finds that there is doubt that, prior to issuance of the current version of the M21-1, there was a clearly prescribed joint form, especially when the appellant filed her claim with SSA in August 1995 based upon the Court's findings in the Kay and Van Valkenburg cases. The Board notes that the Kay case is significantly factually similar to the case presently before the Board although in that case the Veteran died in 1981 rather than 1995. Consequently, it appears that VA's regulations and policies as to the application of 38 C.F.R. § 3.153 as what prescribed joint forms would be accepted for purposes of filing claims for DIC were ambiguous until the issuance of the current M21-1. Such ambiguity is to be resolved in the applicant's favor. See Brown v. Gardner, 513 U.S. 115, 118 (1994) (in the face of statutory ambiguity, the Court ruled that "interpretative doubt is to be resolved in the veteran's favor"); see also Smith (William) v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994) (the canons of statutory construction apply to regulations as well as statutes). For the foregoing reasons, the Board resolves reasonable doubt in the appellant's favor. As the appellant is a Nehmer class member as the cause of the Veteran's death was due to an herbicide-related disease, the effective date is governed by 38 C.F.R. § 3.816(d), specifically subsection (2) since she had not previously submitted a claim for DIC. Pursuant thereto, as the appellant's claim for SSA benefits was filed within one year of the Veteran's death in July 1995 (specifically August 15, 1995), the effective date warranted for the grant of service connection for the cause of the Veteran's death (DIC) is July 1, 1995, the first day of the month of his death. To that extent, the appellant's appeal is granted. ORDER An effective date of July 1, 1995 for the grant of service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs