Citation Nr: 18151061 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 17-02 751 DATE: Entitlement to an effective date prior to October 7, 2011 for the grant of service connection for lung cancer, status post right lung lobe removal, for accrued purposes. November 16, 2018 ORDER Entitlement to an effective date prior to October 7, 2011 for the grant of service connection for lung cancer, status post right lung lobe removal, for accrued purposes is denied. FINDINGS OF FACT 1. In an unappealed March 2003 rating decision, the RO denied service connection for lung cancer as secondary to Agent Orange exposure. 2. Lung cancer was added to the presumptive list effective from August 31, 2010. 3. VA received the Veteran’s claim to reopen service connection for lung cancer as secondary to Agent Orange exposure on October 7, 2011. 4. In a March 2013 rating decision, the RO granted service connection for lung cancer based on the Veteran’s presumed exposure to Agent Orange while stationed in Thailand and with an effective date of October 7, 2011. CONCLUSION OF LAW The criteria for an effective date earlier than October 7,2011 for the award of service connection for lung cancer for accrued purposes have not been met. 38 U.S.C. § 5110 (b)(2)(A) (2012); 38 C.F.R. § 3.155 (2014), 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1957 to September 1978. The Veteran passed away in September 2012 and his surviving spouse is the appellant. This matter come before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Pension Management Center (PMC) in St. Paul, Minnesota. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The appellant in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or appellant or obtained on his or her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to an effective date prior to October 7, 2011 for the grant of service connection for lung cancer, status post right lung lobe removal, for accrued purposes. The appellant contends that she is entitled to an effective date of September 20, 2002 for the presumptive grant of service connection for lung cancer for accrued purposes. Specifically, the appellant asserts that September 20, 2002, the date VA received the first claim for service connection for the Veteran’s lung cancer, is the appropriate date for the grant of service connection. By way of procedural history, VA received a Form 21-526b on September 20, 2002. In a March 25, 2003 rating decision, the RO denied service connection for lung cancer secondary to Agent orange exposure. The Veteran filed a timely Notice of Disagreement (NOD) and a Statement of the Case (SOC) was issued in November 2005. However, the Veteran did not perfect an appeal and, as such, the March 2003 rating decision became final. VA received a new Form 21-526b on October 7, 2011 claiming service connection for lung cancer secondary to Agent Orange exposure during his service in Thailand and in a March 2013 rating decision, the RO reopened and granted the claim for service connection for lung cancer on a presumptive basis with an effective date of October 7, 2011, for accrued purposes. At the outset, the Board notes that in her October 2016 Form 9, the appellant referenced an article regarding the implementation of a regulation due to be published on August 31, 2010 regarding Veterans who had been exposed to Agent Orange. The referenced regulation is 38 C.F.R. § 3.816. In cases involving presumptive service connection due to exposure to herbicide agents, the provisions of 38 C.F.R. § 3.816 set forth an exception to the aforementioned effective date provisions concerning liberalizing law. 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991). That section only applies to "a Vietnam veteran who has a covered herbicide disease," which does not include veterans with service in Thailand unless they also had service in Vietnam. See 38 C.F.R. § 3.816 (b)(1)(i); see also 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."). Although the Veteran is presumed to have been exposed to herbicide agents during his service inclusive of activities in Thailand, and is diagnosed with a covered herbicide disease, he is not a Nehmer class member for purposes of assigning an earlier effective date under 38 C.F.R. § 3.816, as his military service did not include service in the Republic of Vietnam. See, Nehmer v. Veterans Administration of the Gov't of the United States, 284 F. 3d 1158 (9th Cir. 2002). Because the Veteran is not a Nehmer class member, the Board cannot assign an earlier effective date under the provisions of 38 C.F.R. § 3.816. Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2017). In cases where service connection was granted on the basis of new and material evidence following a prior disallowance, the effective date is the later of the date of receipt of the application to reopen or the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). The Board notes that service connection for lung cancer was reopened based upon receipt of new and material evidence and service connection was granted on a presumption of herbicide exposure due to conceded in-service exposure to Agent Orange. The basis of that concession was an October 2012 memorandum from the Joint Services Records Research Center confirming that the Veteran was exposed to Agent Orange while serving in Thailand. Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, 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 C.F.R. § 3.114 (a). Where compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. Id. If a claim is reviewed on the initiative of VA under this section 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. See 38 C.F.R. § 3.114 (a)(1). The Board notes that lung cancer was added to the presumptive list effective from June 9, 1994. The Board does not dispute the appellant’s contention that the Veteran was diagnosed with lung cancer in 2002 or that VA filed his first claim for service connection for this condition in September 2002. However, as discussed above, the Veteran did not perfect an appeal for his original claim which was denied in March 2003. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. Therefore, in light of the finality of the March 2003 rating decision, the Board cannot assign an effective date earlier than October 7, 2011. See 38 C.F.R. § 3.400 (b)(2). As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. See, Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel