Citation Nr: 19106954 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 15-23 148A DATE: January 30, 2019 ORDER Entitlement to retroactive VA compensation benefits for lung cancer and/or IHD pursuant to Nehmer v. United States Department of Veterans’ Affairs is denied. Entitlement to an effective date prior to September 3, 2011, for the award of dependency and indemnity compensation (DIC) benefits is denied. FINDING OF FACT 1. A claim of service connection for lung cancer and/or ischemic heart disease (IHD) was not denied between September 25, 1985, and May 3, 1989, and such a claim was not pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for these conditions. 2. The Veteran died in June 2008, and the Appellant’s claim for DIC benefits was received by the VA on September 3, 2011; there are no communications prior to this date that may be considered a formal or informal DIC claim. CONCLUSION OF LAW 1. The criteria for the award of retroactive VA compensation benefits for lung cancer and/or IHD under Nehmer are not met. 38 U.S.C. § 501; 38 C.F.R. § 3.816. 2. The criteria for assignment of an earlier effective date of prior to September 3, 2011 for the award of DIC are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1968. The Veteran died in June 2008. The Appellant is the Veteran’s surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 determination of the Department of Veterans’ Affairs (VA) Pension Management Center in St. Paul, Minnesota. The Appellant has claimed retroactive VA compensation benefits for lung cancer and IHD under Nehmer v. United States Department of Veterans’ Affairs due to the Veteran’s exposure to herbicides in service. Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404 (N.D. Cal. 1989). Specifically, as discussed below, she has asserted, in part, that the Veteran did not file a claim for lung cancer or IHD during his lifetime due to misinformation provided by VA personnel. In this regard, claims for retroactive benefits under Nehmer are not claims for accrued benefits as such characterization is legally inconsistent with 38 C.F.R. § 3.816 (f)(4), which specifically states that payment of benefits pursuant to Nehmer shall bar a later claim by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and § 3.1000. Further, while the Appellant’s current June 2014 claim for retroactive benefits under Nehmer initially addressed IHD, the Veteran’s death certificate lists metastatic lung cancer as an immediate cause of death and it does not list any other causes such as IHD. In this regard, the Appellant’s DIC benefits claim was granted in an April 2012 rating decision based upon a statutory presumptive connection between lung cancer and herbicide exposure. Thus, as both the Appellant and the Veteran meet VA’s definition of a Nehmer class member under 38 C.F.R. § 3.816 (b), the issues have been recharacterized as reflected on the title page of this decision. That is, consideration has been given to retroactive benefits as well as to an earlier effective date for DIC benefits. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (the Board must consider all potential theories of entitlement raised by the evidence). In March 2018, the Appellant presented testimony before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. 1. Entitlement to retroactive benefits for under Nehmer v. United States Department of Veterans’ Affairs A “claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Prior to March 25, 2015, as is the case here, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Nehmer case included certain stipulations which were agreed to by VA and are now incorporated in 38 C.F.R. § 3.816. Retroactive benefits may be paid under Nehmer if a Nehmer class member is entitled to disability compensation for a covered herbicide disease. See 38 C.F.R. § 3.816. As noted above, both the Appellant and the Veteran meet VA’s definition of a Nehmer class member under 38 C.F.R. § 3.816 (b) (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, 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, except as otherwise provided in paragraph (c)(3) of this section. 38 C.F.R. § 3.816 (c)(2). The covered herbicide diseases are listed in 38 C.F.R. § 3.309 (e). See 38 C.F.R. § 3.816 (b)(2). This list includes respiratory cancer and ischemic heart disease. The effective date of the law establishing a presumption of service connection for respiratory cancer is June 9, 1994. See 59 Fed. Reg. 29,723, 29,724 (June 9, 1994). Effective August 31, 2010, ischemic heart disease was added to the list of disorders for which service connection may be granted on a presumptive basis for veterans exposed to Agent Orange during service. 75 Fed. Reg. 53202 (Aug. 31, 2010). Ischemic heart disease includes, but is 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). However, after careful review of the record, retroactive benefits under Nehmer are not warranted. As a threshold matter, it is not in dispute that the Veteran was a Vietnam Veteran within the meaning of § 3.816(b)(1), and he was diagnosed in November 2006 with a covered disease, lung cancer, under 38 C.F.R. § 3.309 (e). Additionally, an October 2006 echocardiogram provided an impression of aortic stenosis, aortic insufficiency, left ventricular hypertrophy, preserved hemodynamics, dilation of aortic root, and dilation of ascending thoracic aorta. Further, the Appellant submitted a May 2014 private medical letter, which stated, in part, that based on review of medical records dated October 2006 through November 2006, it could be deduced that there was a high likelihood that the Veteran suffered from coronary artery disease. Thus, resolving reasonable doubt, in the Appellant’s favor, the Board finds the Veteran had a diagnosis within the accepted medical definition of IHD. Nonetheless, even assuming the Veteran had a diagnosis of IHD, retroactive benefits under Nehmer are not warranted for IHD or for lung cancer. Regarding lung cancer, on June 9, 1994, approximately 14 years prior to the Veteran’s death in June 2008, respiratory cancers became subject to presumptive service connection under 38 C.F.R. § 3.309 (e) as due to in-service exposure to herbicides. The record does not reflect that the Veteran filed a claim for service connection for lung cancer during his lifetime nor has the Appellant asserted such. As noted above, the record reflects the Veteran was diagnosed with lung cancer in November 2006, and as discussed below, the Appellant asserted that the Veteran did not file a claim due to misinformation provided by VA. Regarding lung cancer and IHD, a claim of service connection was not denied between September 25, 1985, and May 3, 1989, and a claim was not received by VA between May 3, 1989, and August 31, 2010, the effective date of the regulation establishing a presumption of service connection for IHD. To reiterate, the exception in Nehmer cases for service connection dates only applies when (1) VA denied the claim for the covered herbicide disease between September 25, 1985, and May 3, 1989, or (2) the claim was pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for the condition. 38 C.F.R. § 3.816 (c)(1)-(2). In this case, regarding lung cancer, neither of the above Nehmer exceptions apply because there were no prior denials for this condition. Likewise, regarding IHD, there were no prior denials for this condition, and specifically, VA did not deny a claim for the disease between September 25, 1985, and May 3, 1989, as it was not a presumptive disease until August 31, 2010. See 75 Fed. Reg. 53202. Further, a claim for the disease was not pending or received by VA between May 3, 1989, and August 31, 2010. Further, in her July 2015 substantive appeal, and in various other statements, the Appellant reported her late spouse was diagnosed with squamous cell cancer lung cancer in November 2006 and retroactive benefits should be granted from this date as she contacted VA on his behalf asking if there were any benefits available for his condition but was misinformed that none were available. Similarly, in March 2018 testimony, the Appellant reported, in part, the Veteran had diagnoses of coronary heart disease and lung cancer in 2006, and asserted that benefits should be awarded effective prior to 2011 as she reiterated that she had been misinformed about the Veteran’s eligibility for benefits by VA personnel in telephone conversations. The Board acknowledges the Appellant’s contention that she was misinformed with regard to the Veteran’s eligibility for benefits; nevertheless, these 2006 conversations do not constitute a claim for VA benefits, and neither she nor the Veteran submitted any written communication to VA regarding an intent to file a claim for benefits for IHD or lung cancer. See 38 C.F.R. § 3.1 (p). The payment of government benefits must be authorized by statute; erroneous information provided to a claimant is not a basis upon which to estop the government from denying benefits. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (finding that erroneous advice given by government employee cannot be used to estop government from denying benefits). Here, the applicable statute requires filing a claim with VA to initiate entitlement to benefits. 38 U.S.C. § 5101 (a)(1). Further, VA is not bound by erroneous advice dispensed by a VA employee. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Further, the effective date of an award of pension, compensation, or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, as noted above, although the Veteran was diagnosed with IHD and lung cancer in 2006, no claim from the Veteran or otherwise, was received prior to the Appellant’s September 3, 2011 claim for DIC, nor has the Appellant asserted such. Thus, application of 38 C.F.R. § 3.400 also does not provide for entitlement to retroactive benefits. Finally, in addition to the above contentions, also of record is an October 2011 statement from the Appellant, received as part of her initial September 2011 DIC claim, in which she referenced a letter the Veteran had written in 1983 to the National Archives and which she stated reflected his interest and concern regarding Agent Orange. In this regard, also of record is a February 1983 response from the National Archives, which provided the Veteran with his requested information regarding unit histories, Agent Orange and Ranch Hand, and which demonstrates he requested this information from the National Archives rather than VA. Of further significance, the February 1983 response from the National Archives does not reference ischemic heart disease, or lung cancer and it is not reasonable to construe any inquiry to the National Archives as a claim of service connection for heart disease or lung cancer. Accordingly, such does not constitute a prior claim of service connection for either lung cancer or IHD, which may be recognized for purposes of retroactive benefits under Nehmer. Thus, for these reasons, even after considering the benefit-of-the-doubt doctrine, retroactive benefits under Nehmer are not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to an effective date prior to September 3, 2011, for the award of DIC benefits The Appellant is also seeking an earlier effective date for the award of DIC benefits. Currently, the effective date is September 3, 2011 and the record reflects the Appellant’s payments commenced on the first day of the following month, specifically on October 1, 2011, as indicated by an April 2012 notice letter. As a threshold matter, the Board notes that the Appellant is not barred from pursuing this claim. See 38 C.F.R. § 3.816 (f)(2); cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that there is no freestanding claim for an earlier effective date). Further, as noted above, generally, the effective date of an award of pension, compensation, or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For DIC claims based on a veteran’s service-connected death after his or her separation from active service, the effective date is the first day of the month in which the veteran’s death occurred if the claim is received within 1 year after the date of death; otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400 (c)(2). Additionally, when VA or an adjudicative body passes a liberalizing law and compensation is granted, a claimant may receive a retroactive effective date prior to the date he/she would be entitled under the above rules. See 38 C.F.R. § 3.114. If a claim is reviewed at the request of a claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of the request. Id. The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “class member” has been granted compensation from a covered herbicide disease. As discussed above, either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989; or (2) 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 May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease. A review of this appeal under the requirements of Nehmer reveals that the Nehmer exceptions for an earlier effective date do not apply. It is evident from review of the record 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 June 9, 1994 (lung cancer) or August 31, 3010 (IHD). 38 C.F.R. § 3.816 (d)(1) and (2). Rather, the April 2012 rating decision granted the Appellant’s initial claim for DIC benefits and assigned an effective date of September 3, 2011, the date of receipt of her initial claim. Similar to the Appellant’s argument, as addressed above, in her July 2015 substantive appeal, in various other statements, as well as in March 2018 testimony, the Appellant reported that when her late spouse was died in 2008, she contacted VA asking about her eligibility for benefits, but was misinformed that none were available. Thus, she believes benefits prior to September 3, 2011 should be awarded, specifically, from the date of the Veteran’s diagnoses for IHD and lung cancer in 2006 or from the date of his death in 2008. However, the Appellant’s conversations in 2008 do not constitute a claim for VA benefits. See 38 C.F.R. § 3.1 (p). The Appellant did not submit any written communication regarding her intent to file a claim for DIC benefits prior to September 3, 2011. The payment of government benefits must be authorized by statute; erroneous information provided to a claimant is not a basis upon which to estop the government from denying benefits. See McTighe, 7 Vet. App. at 30. Here, the applicable statute requires filing a claim with VA to initiate entitlement to benefits. 38 U.S.C. § 5101 (a)(1). The Appellant testified at the Board hearing that she did not file a claim with VA until 2011 and the record reflects VA received the Appellant’s claim on September 3, 2011. The Board understands the Appellant’s contention that she was misinformed; nevertheless, she did not file a claim to initiate the benefits prior to September 3, 2011. The Board notes that VA is not bound by erroneous advice dispensed by a VA employee. Shields, 8 Vet. App. at 351. The Appellant’s DIC benefits claim was received by VA on September 3, 2011, and was granted effective this date in an April 2012 rating decision based upon a statutory presumptive connection between lung cancer and herbicide agents exposure during the Veteran’s military service in the Republic of Vietnam during the Vietnam Era, although the Board recognizes the Appellant’s current June 2014 claim for retroactive benefits under Nehmer initially addressed IHD. The Board further notes that the Veteran’s death certificate lists metastatic lung cancer as an immediate cause of death and does not list any other causes such as IHD. See 38 C.F.R. §§ 3.307, 3.309. In any event, the legal presumption for service connection for lung cancer was not a liberalizing law that came into effect after the Veteran’s death. On the contrary, the regulations pertaining to service connection on a presumptive basis for lung cancer as a result of presumed herbicide exposure were promulgated in 1994. Further, the although the legal presumption for service connection for IDH was a liberalizing law that came into effect after the Veteran’s death, such was promulgated on August 31, 2010 and the Appellant’s claim for DIC was received on September 3, 2011. Under 38 C.F.R. § 3.114, when a claim is received more than one year after the date of the liberalizing law, benefits may be authorized for a period of one year prior to the date of the administrative determination of entitlement. Under 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. In the present case, as discussed above, the claim was received more than 1 year after the effective date of the liberalizing law. In McCay v. Brown, 106 F.3d 1577, 1580 (Fed. Cir. 1997), however, the Federal Circuit determined that the statutory authority to grant benefits one year prior to the date of the claim or administrative determination of entitlement can only refer to those cases in which the Veteran had previously filed a claim which had been decided against the Veteran. Id. at 1580. In this case, there was no pending claim of record at the time of the June 1994 liberalizing law for lung cancer or the August 2010 liberalizing law for IHD. Therefore, the effective date of the grant of service connection for the cause of the Veteran’s death is governed by 38 C.F.R. § 3.400. Pursuant to 38 C.F.R. § 3.400, the Appellant’s DIC claim was not received within one year after the date of the Veteran’s death, thus the effective date is the date of receipt of claim. 38 C.F.R. § 3.400 (c)(2). Further, although the Board recognizes the Veteran’s lung cancer and IHD were diagnosed in 2006, the effective date of an award of DIC based on an original claim, will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, September 3, 2011, as later than 2006, is the proper effective date. Accordingly, as the preponderance of the evidence is against the claim for an earlier effective, the benefit-of-the-doubt doctrine is not for application, and an effective date prior to September 3, 2011, for the grant of DIC benefits is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel