Citation Nr: 18137751 Decision Date: 09/21/18 Archive Date: 09/21/18 DOCKET NO. 16-17 021 DATE: September 21, 2018 ORDER An effective date earlier than June 17, 2012, for the grant of service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran’s previous claims folder, to include past rating decisions are deemed unavailable. 2. An unappealed May 1994 determination denied the appellant’s claim for death benefits. 3. The appellant submitted an additional claim in August 1999, and per a January 2015 statement, she indicated that her August 1999 claim had been denied. There is no indication that she appealed the denial. 4. The appellant filed an application for service connection for cause of the Veteran’s death on June 17, 2013. 5. VA granted service connection for cause of the Veteran’s death in October 2014 with an effective date of June 17, 2012—one year prior to the appellant’s application for benefits, based upon liberalizing VA regulations. CONCLUSION OF LAW The criteria for an effective date earlier than June 17, 2012, for the grant of service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from March 1967 to March 1969. The Veteran is deceased as of June 1983, and the appellant is his surviving spouse. Historically, in a May 2014 correspondence the RO informed the appellant that the Veteran’s claims folder from Lees Summit (where his folder was being stored) was not available. The RO informed her that all efforts had been exhausted to locate it. She was asked to submit any relevant documents that would be helpful to her claim. Although there is no formal finding of unavailability of records memorandum located in the current file, the Board finds that remanding this claim to have a memorandum associated in the file or to make another attempt to locate the folder would serve no useful purpose and would only result in additional delay in the appellant’s case. The Veteran’s folder is unavailable. The appellant submitted a copy of a May 1994 determination that noted her previously denied Dependency and Indemnity Compensation (DIC) based on the Veteran’s death from carcinoma of the anterior mediastinum was again being denied. The determination included a VA Form 4107 for her to appeal the decision. There is no indication that she appealed this determination. On August 4, 1999, the appellant submitted another claim for DIC based on the Veteran’s cause of death. In an August 20, 1999, correspondence, the RO informed the appellant that her claim had been received. Although, there is no rating decision in the file that addresses the claim, the Board observes that in a January 2015 statement, the appellant indicated that she filed a claim for death benefits in 1999 that was denied. There is no indication from her that she appealed the denial. An effective date earlier than June 17, 2012, for the grant of service connection for the cause of the Veteran’s death Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. 5110; 38 C.F.R. 3.400. A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. 5101(a); 38 C.F.R. 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. 3.1(p). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be 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. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. 3.155. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). 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. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. See 38 U.S.C. 5110(g); 38 C.F.R. 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the 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 at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request. 38 C.F.R. 3.114(a)(3). In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. Following a 2002 decision of the United States Court of Appeals for the Ninth Circuit, VA established regulations pertaining to effective dates for service connection for diseases based on herbicide exposure. Nehmer v. United States Veterans Administration, 284 F.3d 158, 1161 (9th Cir. 2002) (Nehmer III). In pertinent part, a Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease or a surviving spouse of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. 3.816(b)(1)(i). The term “covered herbicide disease” includes respiratory cancer. 38 C.F.R. 3.816(b)(2). The record reflects that the Veteran served in the Republic of Vietnam and died from carcinoma of the anterior mediastinum, (which was later determined to be a respiratory cancer) in June 1983. Therefore, the Veteran is a “Nehmer class member” as defined in the law. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for such benefit pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. 3.816(d). Pursuant to 38 C.F.R. 3.816(d)(2), if the class member’s claim was received between May 3, 1989 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 VA or the date the death occurred, except if the claim was received within one year from the date of the veteran’s death, in which case the effective date shall be the first day of the month in which the death occurred. 38 C.F.R. 3.816(d)(2), (3). In this case, the Veteran was diagnosed with cancer in July 1982 and died from a carcinoma (later determined to be a respiratory cancer) in June 1983. The appellant reports that she filed her first claim for entitlement to service connection for cause of the Veteran’s death in 1983 and the claim was denied. As discussed above, a May 1994 determination denied the appellant’s cause of death claim. The appellant was denied DIC benefits because it was not shown at the time that the tumor of unknown etiology was due to Agent Orange exposure. Further, evidence in the file shows she filed a claim in August 1999 to which she reported in a January 2015 statement that the claim was also denied. It does not appear the appellant appealed any of the determinations that denied service connection for the cause of the Veteran’s death, and new and material evidence was not received within the following year to re-open that claim. Therefore, the determinations became final based on the evidence then of record and is not subject to revision. 38 U.S.C. 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) The Board acknowledges that the Veteran is a Nehmer class member and that the record reflects the appellant filed a claim for service connection for the cause of the Veteran’s death in August 1999, which falls between May 3, 1989 and January 1, 2002. However, respiratory cancers were added to the presumptive list under 38 C.F.R. 3.309(e) in 1994. The January 2002 change in the law did not involve adding lung cancer to the list of presumptive conditions associated with herbicide agent exposure, but rather it extended the manifestation period under an existing presumption. Consequently, the appellant filed the August 1999 claim after the effective date of the regulation establishing a presumption of service connection for the covered herbicide disease and the above-outlined liberalizing provisions under Nehmer do not apply in this case. As noted above, the effective date of an award of service connection is based on the date that the application upon which service connection was eventually awarded was filed with VA. There is no indication the appellant filed a notice of disagreement following notification of the May 1994 determination or after the August 1999 claim was denied. A review of the evidence of record finds that the first communication from the appellant to VA filing a new claim of service connection for the cause of the Veteran’s death was received June 2013. However, as service connection for the cause of the Veteran’s death was granted pursuant to a liberalizing law (Veterans Education and Benefits Expansion Act of 2001), 38 C.F.R. 3.114 is for application, and the October 2014 rating decision assigned June 17, 2012, as the effective date for service connection for the cause of the Veteran’s death because the appellant’s claim was reviewed more than one year after the effective date of the liberalizing law. An effective date prior to June 17, 2012, is not permitted under 38 C.F.R. § 3.114(a)(3) because a claim was not received within one year of when the expanded law took effect in 2002. The Board is sympathetic to the appellant and recognizes the unfortunate circumstances of this case, but is bound by governing law and regulations, and has no authority to award benefits not authorized by governing law. As the RO has already assigned the earliest possible effective date provided by law given the undisputed dispositive facts in this case, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. McPhaull, Counsel