Citation Nr: 18153578 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-14 628A DATE: November 28, 2018 ORDER Entitlement to an effective date earlier than August 31, 2010, for Dependency and Indemnity Compensation for the Veteran’s service-connected death, for the purposes of retroactive benefits under the Nehmer court order, is denied. FINDINGS OF FACT 1. The Veteran died on October [redacted], 2001, and had no claims for benefits pending at the time of his death, nor were there any benefits due to the Veteran but unpaid prior to the last date of entitlement. 2. The Regional Office received the Appellant’s claim for Dependency and Indemnity Compensation on February 18, 2011. 3. The Regional Office assigned an effective date of August 31, 2010, for the award of Dependency and Indemnity Compensation. CONCLUSION OF LAW The criteria for an effective date earlier than August 31, 2010, for the award of Dependency and Indemnity Compensation, based on service connection for the cause of the Veteran’s death, are not met. 38 U.S.C. §§ 1310, 5107, 5110; 38 C.F.R. §§ 3.5, 3.102, 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1966 to February 1969, to include service on the ground in Vietnam. This case is on appeal before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In November 2016, the Appellant appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The Board recognizes that the Appellant filed her substantive appeal more than 60 days after the issuance of the Statement of the Case (SOC). However, the VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Given that the RO continued to litigate the Appellant’s claim even after her untimely substantive appeal, the Board finds that the VA has waived any objections it might have had to the timeliness of the appeal with respect to the matter. Neither the Appellant nor her representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Appellant nor her representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt is given to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Appellant prevails when the evidence supports her claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. The Appellant seeks retroactive Dependency and Indemnity Compensation (DIC) back to August 1, 2010, under the Nehmer court order. See November 2016 Board hearing. DIC benefits may be awarded to a surviving spouse upon the service-connected death of a veteran. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Where a grant of death compensation or DIC is made on the basis of the veteran’s service-connected death, the effective date will be the first day of the month in which the veteran’s death occurred, if the claim is received within 1 year from the date of death; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). An exception applies where DIC is awarded pursuant to a liberalizing law or a liberalizing VA issue. In such cases, the effective date of the award shall be fixed in accordance with 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); see McCay v. Brown, 9 Vet. App. 183, 187 (1996) (“plain language of section 5110(g) prohibits a retroactive award prior to the effective date of the legislation”), affirmed, 106 F.3d 1577 (Fed. Cir. 1997). If a claim is reviewed on the initiative of the VA within one year from the effective date of the liberalizing law or VA issue, or at the request of a claimant received within one 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 on the initiative of the VA more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, the VA established regulations pertaining to effective dates for awards of compensation and DIC benefits for certain diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III) (now codified at 38 C.F.R. § 3.816). A Nehmer class member is a veteran who served in the Republic of Vietnam and who has a “covered herbicide disease,” or a veteran’s surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b). Ischemic heart disease, to include coronary artery disease, is included on the list of covered herbicide diseases. 38 C.F.R. § 3.309(e). With regard to the effective date of the award for Nehmer class members entitled to DIC for cause of death due to a covered herbicide-related disease, if the VA denied DIC for cause of death in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date the VA received the claim on which such prior denial was based or the date the death occurred, except as otherwise provided. 38 C.F.R. § 3.816(d)(1). If the class member’s claim for DIC for cause of death was either pending before the VA on May 3, 1989, or was received by the 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 of the award will be the later of the date such claim was received by the VA or the date the death occurred, except as otherwise provided in paragraph 38 C.F.R. § 3.816(d)(3). 38 C.F.R. § 3.816(d)(2). If the Nehmer class member’s claim was received within one year from the date of the veteran’s death, the effective date of the award shall be the first day of the month in which the death occurred. 38 C.F.R. § 3.816(d)(3). Otherwise, the effective date of the award shall be determined in accordance with 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(d)(4). Here, the Board notes that the Veteran had qualifying service in Vietnam. He passed away on October [redacted], 2001; his death certificate lists coronary artery disease, an herbicide-related condition, as the sole cause of death. At the time of the Veteran’s death, he was not service-connected for this impairment. Thereafter, the Appellant, his surviving spouse, filed a claim for DIC benefits, which was received by the RO on February 18, 2011. A June 2011 rating decision granted the Appellant’s claim for DIC benefits, effective August 31, 2010. On August 30, 2013, the Appellant filed a second claim, seeking retroactive benefits back to August 1, 2010, under the Nehmer court order. The Appellant claims that she is entitled to retroactive benefits from this date because that is when ischemic heart disease, which includes coronary artery disease, was added to list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e). See November 2016 Board hearing. However, there is no legal basis for the Appellant’s contention. Contrary to her assertions, ischemic heart disease was not added to the list of diseases associated with exposure to certain herbicide agents until August 31, 2010. Diseases Associated With Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson’s Disease, and Ischemic Heart Disease), 75 Fed. Reg. 53202-53216 (August 31, 2010) (revising 38 C.F.R. § 3.309(e)). Moreover, the evidence of record shows that the Appellant was never denied DIC benefits between September 25, 1985 and May 3, 1989, nor was there a DIC claim pending between May 3, 1989 and August 31, 2010. Rather, the Appellant did not file her claim for DIC benefits until February 18, 2011, almost 10 years after the Veteran’s death but less than one year after the statutory change. As such, because the Appellant filed her claim less than one year from the effective date of the liberalizing law or VA issue, DIC benefits may be authorized from the effective date of the law. 38 C.F.R. § 3.114(a)(1). Given that ischemic heart disease was not added to list of diseases associated with exposure to certain herbicide agents under 38 C.F.R. § 3.309(e) until August 31, 2010, that is the earliest possible effective date that can be granted for the Appellant’s claim considering the timing of her appeal. (CONTINUED ON NEXT PAGE) Therefore, the Board concludes that the preponderance of the evidence is against the assignment of an effective date earlier than August 31, 2010, for retroactive DIC benefits under the Nehmer court order. The Board has considered whether the Appellant should be afforded the benefit of the doubt; however, because there is no legal basis for the assignment of an earlier effective date, this doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In a case such as this, in which the law is dispositive, the claim must be denied due to lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel