Citation Nr: 20006795 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 16-11 005 DATE: January 28, 2020 ORDER Entitlement to accrued benefits is denied. FINDINGS OF FACT 1. The Veteran died in April 2009. 2. The appellant did not file a claim for accrued benefits until January 2013, more than one year after the Veteran’s death. CONCLUSION OF LAW The criteria for accrued benefits are not met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to July 1970. He died in April 2009 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 decision. The appellant testified before the undersigned Veterans Law Judge (VLJ) at a July 2019 hearing and a transcript of the hearing has been associated with the claims file. As a final preliminary matter, the Board notes that after the certification of this appeal to the Board, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), which was that “Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the “Republic of Vietnam” are entitled to §1116’s presumption if they meet the section’s other requirements. They are”). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 (“The BWN Act codified the Procopio holding”). Moreover, Congress also intended the BWN Act to “ensure that VA defines ‘the Republic of Vietnam’ broadly.” Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). As explained in a December 2019 letter that was sent to the appellant, the Board had previously stayed action on this appeal until the effective date of the BWN Act (January 1, 2020). The stay has since been lifted, and the matter on appeal is now ready for appellate review. Entitlement to accrued benefits An individual entitled to accrued benefits may be paid periodic monetary benefits (due and unpaid) to which a payee was entitled at the time of his death under existing ratings or based on evidence in the file at the time of death. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. An application for accrued benefits must be filed within one year after the date of death. 38 U.S.C. § 5121 (c); 38 C.F.R. § 3.1000 (c). The Board finds, for the following reasons, that entitlement to accrued benefits is not warranted. In this case, the Veteran died in April 2009 (see his April 2009 death certificate). The appellant’s claim for accrued benefits (VA Form 21-534) was received by VA in January 2013, more than one year after the Veteran’s death. Thus, unless there is an applicable exception to this rule, the claim must be denied because of the lack of filing of a claim for accrued benefits within a year of death. During the Board hearing, the appellant thoughtfully expressed that she did not apply for benefits because, given the Veteran’s lack of service in Vietnam, she did not believe that she could prevail under existing law regarding service in Vietnam but that she applied once she knew that the law would be changed to allow for service connection based on service offshore Vietnam in the BWN Act. The Board appreciates this argument and has reviewed the BWN Act and all relevant laws and regulations to determine whether anything therein contradicts or overrides the requirement that an accrued benefits claim be filed within a year of the death of the Veteran. For the following reasons, the Board finds that the one-year requirement applies to this case and requires denial of the claim. Diffuse large cell B-lymphoma contributed to the Veteran’s death and service connection for the cause of the Veteran’s death was awarded by way of an April 2013 rating decision on the basis of his presumed exposure to herbicide agents in Vietnam. It appears that this decision was based on 38 C.F.R. § 3.313, which provides that for non-Hodgkins lymphoma (NHL), service in Vietnam includes service offshore. Other than NHL, prior to the BWN Act, service in Vietnam required service on land or inland waterways. In May 2011, VA issued a Compensation Service Bulletin that announced VA's determination that chronic lymphocytic lymphoma (CLL) should be considered the same disease as NHL for purposes of 38 C.F.R. § 3.313." Pursuant to this determination, VA's manual was updated to reflect that change. See M21-1, Part IV, Subpart ii, 2.C.3.o (including CLL lymphoma as a type of NHL subject to 38 C.F.R. § 3.313). The Board is not bound by VA’s Adjudication Manual, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (“The M21-1 Manual is binding on neither the agency nor tribunals”), but it “is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases.” Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). In a complex series of Federal District Court decisions in the Nehmer case, a class of veterans prevailed in invalidating VA regulations relating to presumptive service connection for certain covered diseases due to herbicide agent exposure. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989); Nehmer v. United States Veterans Admin., 32 F. Supp. 2d. (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Admin., 284 F.3d 1158 (9th Cir. 2002). Ultimately, VA codified the result of the Nehmer litigation in 38 C.F.R. § 3.816. A “Nehmer class member” means either a Vietnam veteran who has a covered herbicide disease or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1). A “covered herbicide disease” means a disease for which VA has established a presumption of service connection as provided in 38 C.F.R. § 3.309 (e). 38 C.F.R. § 3.816 (b)(2). Hence, a covered herbicide disease includes NHL including CLL. See 38 C.F.R. § 3.309 (e). For Nehmer class members, the right to benefits survives them, contrary to 38 U.S.C. § 5121. Thus, concepts relating to accrued benefits are not applicable in Nehmer cases. However, VA’s General Counsel (GC) specifically addressed whether the Nehmer rules applied to BWN Act cases and found that they do not. VAOPGCPREC 3-2019 (Dec. 13, 2019) (“Because the Nehmer stipulation was not triggered, and Congress expressed no intent to adopt the Nehmer obligation regarding payees, we conclude that Congress intended for the title 38 DIC and accrued benefits understanding of ‘survivor’ to govern”). The BWN Act does provide for special effective date rules with regard to claims where service connection is sought for diseases presumed service-connected in veterans exposed to Agent Orange that were denied based on lack of service in Vietnam and are now able to be granted based on such service. See 38 U.S.C. § 1116A(c)(2). Those provisions indicate that the survivor of a veteran falls within the ambit of the statute if the Veteran or survivor submitted a claim for disability compensation between September 25, 1985 and January 1, 2020 for a covered disease and the Veteran or a survivor submitted a claim for disability compensation on or after January 1, 2020 for the same condition covered by the prior claim and the claim is approved pursuant to this section. 38 U.S.C. § 1116A(c)(2)(B). In that situation, the effective date is based on the date of the prior claim. However, nothing in this provision or any other part of the law indicates that a surviving spouse can be awarded benefits based on a claim for accrued benefits filed more than one year after the death of the Veteran. As discussed during the Board hearing, the appellant’s statement that she did not apply for accrued benefits until she was eligible for those benefits because the Veteran did not set foot in Vietnam, but may have served offshore Vietnam, appears to reflect a reasonable understanding of the legal criteria for service connection for a covered disease during those time periods, as the law relating to what constitutes service in Vietnam has been subject to change over the years especially with regard to CLL. The appellant’s contentions in this regard are thoughtful and the result may be unfair. She did not apply for benefits until she reasonably believed they were warranted under the law. The Board is sympathetic to the appellant’s claim and appreciates the admirable service of the Veteran, but it is bound by the laws, regulations, and GC opinions that apply to claims for veterans benefits and it has no discretion in this regard. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws, regulations, and GC opinions require that an accrued benefits claim be filed within a year of the Veteran’s death except in the case of Nehmer class members, and the appellant is not a Nehmer class member. Although the Board is required to “render a decision which grants every benefit that can be supported in law,” it regrets that there is no basis in law to grant any aspect of the appeal being decided herein. 38 C.F.R. § 3.103 (a). The legal criteria in this case are clear and the pertinent facts are not in dispute. The appellant did not submit any claim for accrued benefits within one year of the Veteran’s death, and she has not claimed otherwise. For the foregoing reasons, entitlement to accrued benefits is not warranted. The appellant’s appeal must therefore be denied as a matter of law, and the benefit of the doubt doctrine is thus not for application. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel 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.