Citation Nr: 18151455 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-26 410 DATE: November 19, 2018 ORDER Entitlement to an effective date prior to March 7, 2013 for the award of service connection for the cause of the Veteran’s death is denied. Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. In unappealed September 2012 and November 2012 rating decisions, the RO denied the appellant's claim for service connection for the Veteran’s cause of death due to ischemic heart disease due to herbicide exposure. 2. The appellant did not appeal either the September 2012 or November 2012 rating decisions and they became final. 3. The appellant filed a new claim for service connection for the Veteran’s cause of death on March 7, 2014. There are no communications prior to this date and subsequent to the last final denial that may be considered a formal or informal claim by the appellant. 4. The Veteran did not have any claims pending at the time of his death. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 7, 2013, for the award of service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2018). 2. The criteria for entitlement to accrued benefits have not been met. 38 U.S.C. § 5121A (2012); 38 C.F.R. §§ 3.1 (p), 3.155(a), 3.1000 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to February 1974 to include service in the Republic of Vietnam. He died in July 1993. The appellant is his surviving spouse. 1. Entitlement to an effective date prior to March 7, 2013 for the award of service connection for DIC based on service connection for the cause of the Veteran’s death 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, dependency and indemnity compensation, or pension, 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. § 5110 (a) (2012). 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 the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400 (b)(2) (2018). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Based on the facts in this case, the former regulations apply, as provided below. A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1 (p), 3.155(a) (2018); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1 (p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2018). The Veteran served in the Republic of Vietnam during the Vietnam Era. Effective on August 31, 2010, VA amended 38 C.F.R. § 3.309 (e) to add, in pertinent part, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina) to the list of diseases associated with exposure to certain herbicide agents. See 75 Fed. Reg. 53,202. The intended effect of this amendment was to establish presumptive service connection for these diseases based on herbicide exposure. Note 3 indicates that, for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). The final rule is applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date. VA has promulgated special rules for the effective dates for the award 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. Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov’t of the U.S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d 846 (2007) (Nehmer IV). Under Nehmer, a claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant’s application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (2) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. § 3.816 (c)(2). If the requirements of paragraph (c)(1) or (c)(2) listed above are not met, the effective date of the award shall be determined in accordance with liberalizing law and general effective date provisions of 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816 (c)(4). Pursuant to 38 C.F.R. § 3.114 (a)(1) if a claim that is reviewed at the request of the claimant is received within one year of the effective date of the law, benefits may be authorized from the effective date of the law or VA issue. Ischemic heart disease was added to the list of diseases entitled to presumptive service connection for herbicide exposure effective August 31, 2010. Thus, the effective date of the law is August 31, 2010. While the appellant submitted a May 2011 claim for survivor’s pension, noting the Veteran’s past heart diagnosis, a claim for service connection for the cause of the Veteran’s death was denied in September 2012. In that decision, the RO considered the claim for service connection as due to claimed ischemic heart disease under the presumptive previsions of 38 C.F.R. § 3.309, but the RO found that there was no medical evidence showing that the Veteran was diagnosed with ischemic heart disease at the time of his death. The claim was denied again in a November 2012 rating decision for the same reasons. The record shows that the appellant did not submit a notice of disagreement to either the September 2012 or November 2012 rating decisions, nor did she submit relevant evidence in support of the appeal after the last final denial in November 2012. For these reasons, the September 2012 and November 2012 rating decisions became final. Thus, while the appellant had submitted an earlier claim for compensation pursuant to Nehmer, this claim was denied, and the effective date in this case is based on the later of the date of receipt of the reopened claim for service connection with consideration of the liberalizing law provisions of 38 C.F.R. §§ 3.114. Pursuant to 38 C.F.R. § 3.114 (a) (2) if a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. Lastly, pursuant to 38 C.F.R. § 3.114 (a)(3) if a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. Here, the appellant submitted a new claim for Dependence Indemnity Compensation and accrued benefits in March 7, 2014. As the claim was received more than one year after the effective date of the law, the provisions of 38 C.F.R. § 3.816 (c)(2) are not for application. Service connection for the Veteran’s cause of death was granted in a June 2015 rating decision based on the appellant’s submission of new and material medical evidence in April 2015, which established the Veteran’s diagnosis of arteriosclerotic heart disease with a history of ventricular atrial fibrillation and cardiac arrest at the time of his death. Under 38 C.F.R. § 3.400, the effective date would be based on the later date of receipt of the claim. The award or service connection was based on liberalizing legislation; thus, it may be authorized for a period of one year prior to her March 7, 2014 claim pursuant to 38 C.F.R. § 3.114 (a)(3) cited above. Thus, the Board finds that the RO correctly assigned an effective date of March 7, 2013 for the award of service connection for the cause of the Veteran’s death. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that an effective date prior to March 7, 2013, for the grant of service connection for the Veteran’s cause of death due to ischemic heart disease due to herbicide exposure is not warranted. 2. Entitlement to accrued benefits Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran’s children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the veteran. See 38 C.F.R. § 3.1000 (a). In July 2006, the appellant submitted a copy of an April 1993 rating decision which granted the Veteran entitlement to nonservice-connected pension benefits at the aid and attendance rate. In August 2000, she submitted copy of a June 1993 letter identifying the amount of her monthly award of benefits from December 1991. A certificate of death shows that the Veteran died in July 1993. The appellant and her representative did not discuss the April 1993 award of pension, but in an October 2017 Brief, argued that the June 1993 award letter coincided with a possible claim from the Veteran for a heart attack on January 7, 1991. The record in this case is incomplete and did not include original copies related to the April 1993 rating decision or June 1993 award letter, and a December 2017 Memorandum from the VA Records Management Center indicates that no additional records were located after multiple searches completed pursuant to a Board remand. Service treatment records are associated with the record. The Board finds, based on the December 2017 Memorandum, that the missing records associated with the 1993 awards are not available in this case and that further efforts to locate them would be futile. The Board finds, based on the available evidence, that the Veteran did not have any claims pending at the time of his death, to include a pending claims for service connection for ischemic heart disease. While the Veteran’s representative contends that a June 1993 award may have been related to a prior claim for service connection for a heart attack, there is no evidence to support this. The April 1993 rating decision which granted entitlement to pension benefits provides that it was based on an original January 1992 informal claim for pension. Because the Veteran was unable to file a claim on his own behalf, the benefits were granted beginning the day following the date the Veteran last worked in January 1991. The June 1993 award letter was addressed to the appellant, and not to the Veteran, and appeared to reference her award of benefits, and not any compensation award received by the Veteran. There are no records dated prior to the Veteran’s death that can be construed as a claim for service connection for ischemic heart disease, and there is no indication that any monetary benefits remained due and unpaid. For these reasons, the appeal for accrued benefits is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung, Counsel