Citation Nr: 19144999 Decision Date: 06/11/19 Archive Date: 06/10/19 DOCKET NO. 18-12 909 DATE: June 11, 2019 ORDER An effective date prior to February 8, 2011, for Dependency and Indemnity Compensation (DIC) benefits based on service connection for cause of death of the Veteran is denied. FINDINGS OF FACT 1. In February 1980 and June 1997 decisions, the Board denied claims for service connection for cause of death. The appellant neither appealed those decisions nor raised a claim of clear and unmistakable error such that they are final. 2. Subsequent to the appellant’s February 8, 2011, claim to reopen, VA received new and material evidence and reopened the appellant’s claim for entitlement to DIC benefits based on service connection for cause of death of the Veteran. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 8, 2011, for DIC benefits based on service connection for cause of death of the Veteran are not met. 38 U.S.C. § 5110(a), (d); 38 C.F.R. §§ 3.156, 3.400, 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1969 to August 1971. The Veteran died in July 1979, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. 3.400. The effective date for an award of service connection for cause of death after separation from service shall be the first day of the month in which the veteran’s death occurred if the claim is received within one year after the date of death; otherwise, the effective date is the date of receipt of the claim. See 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). For the appellant to be awarded an effective date based upon an earlier claim that has been adjudicated to finality, clear and unmistakable error (CUE) in the prior denial of the claim must be shown during a collateral attack. See 38 C.F.R. §§ 3.105(a) (agency of original jurisdiction), 20.1400–20.1411 (Board); Flash v. Brown, 8 Vet. App. 332, 340 (1995); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002); Leonard v. Nicholson, 405 F.3d 1333, 1336–37 (Fed. Cir. 2005) (stating: “No matter how Leonard tries to define ‘effective date,’ the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”). As the award of DIC benefits based on service connection for cause of death in this case was not made under a liberalizing law or provision, the effective date provisions under 38 C.F.R. § 3.114 will not be addressed herein. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286–88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380–81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the appellant’s claim. Entitlement to an effective date prior to February 8, 2011, for DIC benefits based on service connection for cause of death of the Veteran. Without providing a legal basis to support her contention, the appellant seeks an effective date of August 16, 1979, for the award of DIC benefits based on service connection for cause of death of the Veteran, which was the date of her first application for dependency and indemnity compensation. The Board concludes that, under the legal authority governing effective dates, February 8, 2011, is the proper effective date in this case. 38 U.S.C. § 5110(a), (d); 38 C.F.R. §§ 3.156, 3.400, 3.400(c)(2). In September 1978, the Veteran filed a claim for entitlement to service connection for leukemia after having fallen ill during weekend reserve training and was subsequently diagnosed with acute erythroleukemia. His July 1979 death certificate stated the cause of death as pneumonia and septicemia due to acute leukemia. The appellant filed her first DIC claim on August 16, 1979, and was substituted in the adjudication of the Veteran’s open service connection claim. In a February 1980 decision, the Board denied entitlement to accrued benefits as a widow based on veteran’s outstanding claim for service connection for leukemia at the time of his death. As the disability that arose during inactive duty training was a disease rather than an injury, entitlement to service connection was denied, citing 38 U.S.C. §§ 101(24), 106, 310, 312, 313, 337, 3021; 38 C.F.R. § 3.307. In June 1993, the appellant applied to reopen her DIC claim, contending that the Veteran’s leukemia was caused by in-service exposure to herbicide agents. In a June 1997 decision, the Board denied entitlement to service connection for the cause of the Veteran’s death, claimed as due to Agent Orange exposure, because at that time leukemia was not among the diseases for which presumptive service connection was available, citing 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). It was also noted that there was no evidence of record to establish direct service connection for the Veteran’s leukemia. In August 2010, the list of diseases presumptively associated with exposure to herbicide agents was amended to include “[a]ll chronic B-cell leukemias (including, but not limited to, hairy cell leukemia and chronic lymphocytic leukemia.” 75 Fed. Reg. 53202, 53216 (Aug. 31, 2010). Most recently, on February 8, 2011, a report of general information shows that the appellant called to inquiry about reopening her DIC claim, which was followed by the filling of a formal claim in May 2011. In January 2012, a VA medical opinion was obtained in which it was opined that the Veteran’s acute erythroleukemia, which was a type of acute myeloid leukemia, was less likely than not caused by or resulted from a B-cell or hairy cell leukemia. Based upon this medical opinion and lack of a diagnosis of a B-cell/hairy cell leukemia, in a January 2012 rating decision, service connection for cause of death, for the purposes of entitlement to retroactive benefits, remained denied. The appellant appealed, and, in May 2012, she presented an independent medical opinion prepared by Dr. C.N.B., in which it was stated: “It is my opinion considering every possible sound medical etiology/principle, to at least the 90% level of probability (considering any new signs and symptoms to the next higher medical diagnostic code/rating level for muscle, nerve and joint damage) that his leukemia cancer and demise is due to his exposure with AO in Viet Nam.” Supporting reasons were provided. After the appellant perfected her appeal, in the November 2015 rating decision on appeal, service connection for cause of death was granted, effective February 8, 2011, the date of her most recent informal claim. Noting that the VA medical opinion did not address whether the Veteran’s in-service exposure to herbicide agents directly caused his leukemia, the medical evidence was found to be in equipoise, and resolving reasonable doubt in favor of the appellant, the RO granted the claim. The appellant perfected her appeal as to entitlement to an earlier effective date. The Board concludes that, under the legal authority governing effective dates, February 8, 2011, is the proper effective date in this case. The only piece of probative evidence supporting a positive nexus on a direct basis between the Veteran’s leukemia and his active duty military service is Dr. C.N.B.’s positive medical opinion, which was introduced during the appellant’s reopened claim brought on February 8, 2011. The appellant’s entitlement is bottomed on a direct basis, which was not established until the filing of the February 2011 claim to reopen and the May 2012 introduction of Dr. C.N.B.’s medical opinion. In February 1980, the Board denied service connection because the Veteran incurred a disease, rather than an injury, while on inactive duty service. In June 1997, the Board denied service connection because the Veteran’s type of leukemia was not on the list of presumptive diseases related to exposure to herbicide agents. Those decisions became final, and the appellant has not alleged CUE in either. Hence, the earliest possible effective date is the date of her most recent claim to reopen, which was February 8, 2011. The Board acknowledges that throughout the years the appellant has made numerous statements that she believed the cause of the Veteran’s leukemia and death was in-service exposure to herbicide agents. Such opinions, however, require specific medical training and are beyond the competency of a lay person. In the absence of evidence indicating that the appellant has the medical training to render medical opinions, the Board must find that her contentions in this regard to be of no probative value. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469–70 (1994) (noting that competent lay evidence requires facts perceived through the use of the five senses); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that “lay persons are not competent to opine on medical etiology or render medical opinions.”). Hence, the only probative medical evidence establishing a positive nexus between the Veteran’s leukemia and service was not introduced until May 2012. (CONTINUED ON NEXT PAGE) The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Accordingly, the Board finds that the February 8, 2011, effective date for the award of DIC benefits based on service connection for cause of death of the Veteran was proper as a matter of law. As the law and the facts are dispositive, the benefit of the doubt rule does not apply, and the claim for an earlier effective date must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.