Citation Nr: 18156437 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-01 539 DATE: December 10, 2018 ORDER An effective date prior to August 9, 2012, for the award of service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides coincident with his service in Vietnam. 2. The earliest medical evidence confirming the presence of ischemic heart disease, diagnosed as arteriosclerotic cardiovascular disease (ASCVD), is dated January [redacted], 2004. 3. The appellant’s original Application for Dependency and Indemnity Compensation (DIC) was received on August 9, 2013. 4. Ischemic heart disease, including ASCVD, was added to the list of diseases presumed to be related to herbicide exposure effective August 31, 2010. 5. In the August 2013 rating decision, presumptive service connection for the Veteran’s cause of death, ASCVD, was granted with an effective date of August 9, 2012. CONCLUSION OF LAW The criteria for an effective date prior to August 9, 2012, for the award of service connection for the Veteran’s cause of death have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to January 1971, including service in the Republic of Vietnam from July 1968 to July 1969. He died in January 2004, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 and September 2018 letters, the appellant was advised that her requested Board hearing before a Veterans Law Judge had been scheduled for October 2018. Despite being reminded of such hearing earlier in the month, she failed to appear for it. She has not presented good cause for her absence or requested that such hearing be rescheduled. Therefore, the Board finds that her request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(d). Entitlement to an effective date prior to August 9, 2012, for the award of service connection for the cause of death. The appellant contends that an effective date prior to August 9, 2012, is warranted for the Veteran’s cause of death. Specifically, she asserts that, as he died on January [redacted], 2004, such date should be the effective date of service connection. Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, was 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. 38 C.F.R. § 3.155(a). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed.Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). While the VA should broadly interpret submissions from a claimant, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, 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. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183, (1996), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 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 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. 38 C.F.R. § 3.114(a)(2). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Specifically, 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) (Nehmer Stipulation). For purposes of this section, a Nehmer class member includes a Vietnam Veteran who has a covered herbicide disease. As the record documents that the Veteran served in Vietnam during the Vietnam War era, he was a Vietnam Veteran as defined in the regulations and, thus, a Nehmer class member. According to 38 C.F.R. § 3.816(b)(2), a “covered herbicide disease” includes diseases for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. Ischemic heart disease, which includes ASCVD, was not added to the list of presumptive disabilities until August 31, 2010. 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, notice accompanying the issuance of the final August 31, 2010 rule specifically notes that the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease. Id. In addition, the final rule makes clear that the effective date of this rule is the date of publication in the Federal Register, or August 31, 2010. Id (as the governing statute mandates that the effective date of the new regulation be the date of issuance of the final rule, the Secretary has no discretion to set an effective date for the new presumptions earlier than the date the final regulation is issued). Specific to Nehmer class members, if VA denied compensation for the same covered herbicide disease 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 VA received the claim on which the prior denial was based or the date the disability arose. 38 C.F.R. § 3.816(c)(1). If the class member’s claim for disability compensation for the covered herbicide disease 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 disease (i.e. August 31, 2010 for ischemic heart disease), the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(2). If the class member’s claim referred to in § 3.816(c)(1) and § 3.816(c)(2) was received within one year of the class member’s separation from service, the effective date of the award shall be the day following the date of the class member’s separation from active service. 38 C.F.R. § 3.816(c)(3). Here, the appellant’s original Application for DIC, which was received on August 9, 2013. 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 are not for application. Service connection for the Veteran’s cause of death was granted in a September 2013 rating decision based on the appellant’s submission of a death certificate, which established the Veteran’s diagnosis of ASCVD as of the date of his death, i.e., January [redacted], 2004. 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 August 9, 2013, 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 August 9, 2012, 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 August 9, 2012, 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. In this regard, the record does not show, and the appellant does not assert, that a formal or an informal claim for service connection for ischemic heart disease was filed prior to August 9, 2013. While the record indicates that the Veteran died of ASCVD in January 2004, no submission of correspondence or other written intent to file a claim for the Veteran’s heart disease was received by VA until August 9, 2013. In this regard, the mere presence of clinical evidence does not establish the Veteran’s intent to seek service connection for a condition. See Brannon, 12 Vet. App. at 35; Lalonde, 12 Vet. App. at 382. The record is otherwise silent as to correspondence or other written intent from the Veteran, dated prior to August 9, 2013, that could be construed as a claim for his heart condition. The Board emphasizes that, while VA does have a duty to assist a claimant in developing facts pertinent to a claim; it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). To the extent practicable, VA does make every effort to identify and notify claimants of the potential entitlement to benefits. In the present case, the claims file contains no communication from the Veteran prior to August 9, 2013, that placed VA on notice as to potential entitlement to service connection for ASCVD. Therefore, as these records do not indicate the Veteran’s intent to establish service connection for ASCVD prior to August 9, 2013, an earlier effective date is not warranted in this instance. Furthermore, the record contains no application, statement, or submission that may indicate an intent to apply for compensation for this covered herbicide disability within one year of separation from service (i.e., January 1972). Therefore, assignment of an effective date of the day following his service discharge is not warranted. See 38 C.F.R. § 3.816(c)(3). While the Board acknowledges the appellant’s belief that an earlier effective date for the award of service connection for the cause of the Veteran’s death is warranted, there is no basis in law to assign an effective date prior to August 9, 2012. Therefore, the appellant’s claim for an earlier effective date must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel