Citation Nr: 18156697 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 09-13 832 DATE: December 10, 2018 ORDER Entitlement to an effective date prior to June 5, 2000 for service connection for the cause of the Veteran's death, and accrued benefits, is denied. FINDINGS OF FACT 1. The Veteran died in October 2004 due to myocardial infarction caused by respiratory failure and lung cancer. 2. The liberalizing change to 38 C.F.R. § 3.307(a)(6)(iv), expanded the period of time for presence in or near Demilitarized Zone to veterans who served in that area between April 1, 1968 and August 31, 1971, effective February 24, 2011. 3. In a November 2015 rating decision, the RO granted the appellant’s claim for service connection for the cause of the Veteran’s death, effective February 24, 2011. 4. In a May 2017 decision, the Board granted the appellant’s claim for an earlier effective date prior to February 24, 2011, effective June 5, 2000. 5. The Veteran was a Nehmer class member entitled to retroactive benefits. 6. June 5, 2000 is the earliest possible effective date for the benefit allowed by law. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to June 5, 2000 for service connection for the cause of the Veteran's death, and accrued benefits, have not been met. 38 U.S.C. §§ 1110, 5101, 5110; 38 C.F.R. §§ 3.114(a), 3.307(a)(6)(iv), 3.309(e), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to January 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota. This matter was previously before the Board in May 2017, where the claim for an earlier effective date prior to February 24, 2011, was granted. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a May 2018 Memorandum Decision, which remanded the May 2017 Board decision for re-adjudication consistent with its decision. Entitlement to an effective date prior to June 5, 2000 for service connection for the cause of the Veteran's death, and accrued benefits. The appellant contends that she is entitled to an earlier effective date for the Veteran’s cause of death. After review of the evidence, the Board finds that an earlier effective date prior to June 5, 2000 is not warranted. Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. 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. See McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff’d, 106 F.3d 1577, 1581 (Fed. Cir. 1997). The Veteran died on October [redacted], 2004, and the appellant is his surviving spouse. See Marriage Certificate/License; see also Eligibility Verification Report, January 2006. The death certificate lists the Veteran’s cause of death as myocardial infarction caused by respiratory failure and lung cancer. At the time of the Veteran’s death, he was not service-connected for any disabilities. Immediately after the Veteran’s death, the appellant filed an application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse in October 2004. In July 2010, after numerous denials from the RO, the appellant contended that the Veteran was exposed to Agent Orange during his service in Korea. The RO granted the appellant’s claim in the October 2015 rating decision, due to new regulatory changes regarding presumptive herbicide exposure. Effective February 24, 2011, the change expanded the period of time for presence in or near the Korean Demilitarized Zone to veterans who served in that area between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307(a)(6)(iv). Since the Veteran served in or near the Korean Demilitarized Zone between October 29, 1969 and November 24,1970, he is presumed to have been exposed to herbicide agents during his active service. Therefore, due to the Veteran’s primary and contributory causes of death, myocardial infarction and respiratory cancers, being listed diseases associated with exposure to herbicide agents; the Veteran’s claim for service connection was granted, and given an effective date of February 24, 2011. See 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114(a), 3.400(p) (2016) (generally, if the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law). However, the appellant disagreed with the effective date in a December 2015 notice of disagreement, and after all subsequent procedural requirements were met, the claim was subsequently certified to the Board in February 2016. In the May 2017 decision, the Board granted the appellant an earlier effective date of June 5, 2000, under the laws regarding Nehmer class members. The Board found that the Veteran was a Nehmer class member. 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I). The VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicide agents, pursuant to orders of a United States District Court in the class action case of Nehmer. Specifically, certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease, including respiratory cancer, between September 25, 1985 and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989 and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). In these situations, 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. See 38 C.F.R. § 3.816(c)(1), (c)(2). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). On June 5, 2000, the Veteran filed a claim for service connection for cancer/laryngectomy, which was first diagnosed in May 2000. See Statement in Support of Claim, June 2000. At that time, the evidence of record did not show that the Veteran’s cancer/laryngectomy was incurred and/or related to service. Thus, the Veteran’s claim was denied by the RO in December 2000. The Veteran did not appeal this decision; therefore, this decision was final. See 38 C.F.R. §§ 20.302(a), 20.1103. However, during reconsideration by the Board in May 2017, the Board found that since this claim was filed for a covered herbicide disease between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, pursuant to 38 C.F.R. § 3.816(c)(2), and the claim for lung cancer is a contributory cause of the Veteran’s death, the effective date of the award is the later of the date the claim was received by the VA or the date the disability arose. Id. Therefore, in this case, the date of the claim was after the Veteran’s disability arose; thus, June 5, 2000 would be the appropriate effective date given. However, the appellant appealed the matter to CAVC, stating that the effective date should be in April 1993, the date the claim for service connection for tuberculosis was filed. The appellant contends that the Veteran’s tuberculosis caused or is otherwise related to the Veteran’s cause of death. In the May 2018 CAVC Memorandum decision, the Court has requested that the Board discuss whether consideration for the Veteran’s tuberculosis is proper in awarding an earlier effective date. After reviewing the record, the Board finds that consideration for the Veteran’s tuberculosis is not warranted. In April 1993, the Veteran filed a claim for entitlement to service connection for tuberculosis, which was ultimately denied in a September 1997 Board decision. The record does not reflect that the Veteran challenged the denial of the Board’s decision; and thus, the finality of the decision still stands. 38 C.F.R. § 20.1100. However so, the Veteran’s service treatment records (STRs) show normal lungs and chest X-rays during induction and separation examinations; however, the Veteran received treatment due to a tuberculin conversion in July 1971. The Veteran tested negative in June 1969, and positive in August 1970, after taking a tuberculosis tine test, but there was no evidence of the disease being active. Post-service VA treatment records reveal that the Veteran was receiving treatment for tuberculosis since 1993, even though the Veteran contends that he has had tuberculosis since 1969. In an April 1993 letter from the Mississippi State Department of Health, it explains that the Veteran was given a series of tests, designed to detect mycobacterium tuberculosis, which causes the disease tuberculosis in human beings. The Veteran exhibited a positive reaction to the tests, and was given medication for treatment until further tests could be conducted. In November 1993, a Court Order was issued by the Mississippi State Department of Health, notifying the Veteran of his failure and refusal to continue his treatment and attend appointments for further testing. In January 1994, while filing a claim with the Social Security Administration, the Veteran was diagnosed with active pulmonary tuberculosis. See Third Party Correspondence, February 1994. Based on the medical information of record, the RO denied the Veteran’s claim in a September 1993 rating decision. The Veteran filed a timely notice of disagreement, and a subsequent Statement of the Case (SOC) was issued in November 1993, continuing the denial. The Veteran filed a timely Form 9, certifying his appeal to the Board, which the Board ultimately remanded in a June 1996 decision to obtain a VA examination to determine whether the Veteran’s tuberculosis was inactive or active, and the onset of the disease, for adjudication purposes. In July 1996, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with pulmonary tuberculosis, inactive. It was noted that the Veteran stated that he was first diagnosed with tuberculosis in 1971 when he came back from Korea, and had reoccurring episodes in 1988/1989 in New Jersey. However, after reviewing the Veteran’s claims file, the examiner found that the Veteran had a negative skin test in June 1969, and tested positive for a tuberculosis tine test in July 1970. His in-service X-rays were all negative for any signs of active or inactive tuberculosis. Therefore, the examiner opined that to the extent medically possible, from the Veteran’s own history, the onset of his tuberculosis must have been in 1988 or 1989 while in New Jersey, and not in 1970, as a positive tuberculosis tine skin test is not tuberculosis. In a September 1997 Board decision, the Veteran’s claim for tuberculosis was denied, as the objective medical evidence did not show that the Veteran’s tuberculosis incurred in or was otherwise related to his active service. The Veteran did not appeal this decision. Thus, according to VA law, this decision is final. See 38 C.F.R. § 20.1100. Furthermore, since the finality of the decision regarding tuberculosis, the Veteran nor appellant has offered any new and material evidence that would warrant a reopening of the claim; and the record does not contain any medical evidence that shows that the Veteran’s tuberculosis caused or is otherwise related to the Veteran’s primary and/or contributory causes of death. The Board acknowledges the Veteran’s assertions that his cancer resulted from tuberculosis; and the appellant’s assertions that the Veteran died with tuberculosis in the lungs and cancer, and the cause of death started at the beginning of the Veteran’s tuberculosis testing. See Rating Decision, December 2000; Correspondence, December 2007. However, lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competency to testify as to symptoms but not to provide medical diagnosis). Therefore, the objective medical evidence of record does not substantiate that the Veteran incurred tuberculosis during service, presumptively or otherwise. Also, it is not a listed cause of the Veteran’s death, and the record does not contain any competent and credible evidence that reflects a causal relationship between the Veteran’s tuberculosis and his primary and/or contributory causes of death. Thus, the Board finds that consideration for the Veteran’s tuberculosis in rendering the decision regarding an earlier effective date is not appropriate. The earliest effective date allowable under VA law for the appellant’s claim is June 5, 2000. Accordingly, entitlement to an earlier effective date prior to June 5, 2000 is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel