Citation Nr: 21063768 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-28 504 DATE: October 15, 2021 ORDER An effective date prior to March 14, 2017 for a grant of Dependency and Indemnity Compensation (DIC), based on service connection for the cause of the Veteran's death, is denied. An effective date prior to March 14, 2017 for a grant of Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is denied. FINDINGS OF FACT 1. Effective March 14, 2017, adult leukemia was added to the list of presumptively service-connected diseases at 38 C.F.R. §§ 3.307 and 3.309 for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987. 2. In June 2017 the Board granted service connection for the cause of the Veteran's death, based on the change in the law that allowed presumptive service connection for adult leukemia for veterans presumed to have been exposed to contaminants in the water supply at Camp Lejeune. 3. In November 2017, the RO awarded DIC and DEA benefits to the appellant, based on a grant of service connection for the cause of the Veteran's death, and assigned effective dates of March 14, 2017. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 14, 2017 for a grant of DIC based on service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 5107, 5110(g), 7105; 38 C.F.R. §§ 3.102, 3.159, 3.400(c)(2). 2. The criteria for an effective date prior to March 14, 2017 for a grant of DEA have not been met. 38 U.S.C. §§ 5107, 5110(g), 7105; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran died in June 2007. The appellant is his surviving spouse. In September 2021, the appellant failed to report for a hearing at the RO. There is no record to show that she ever requested another hearing or presented good cause for her absence. Her request for a hearing is considered to be withdrawn, and the Board may proceed. 38 C.F.R. § 20.702 (e). The appellant argues that an effective date prior to March 14, 2017 is warranted for the grant of service connection for the cause of the Veteran's death, and the derivative grants of DIC and DEA. She essentially argues that she originally filed her claim in 2007. See appellant's notice of disagreement (VA Form 21-0958), received in November 2017; appeal (VA Form 9), received in May 2018. 1. Effective date for DIC prior to March 14, 2017. Grants of DIC benefits under 38 U.S.C. § 1310 are based on grants of service connection for the cause of a veteran's death. Generally, the effective date of an award of DIC for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 38 C.F.R. § 3.400 (c)(2) clarifies that the effective date for service-connected death after separation from service 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, it is the date of receipt of claim. The effective date of award of DIC based on change of law or administrative issue shall be in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. §§ 3.114 (a), 3.400(p). When a provision of law or regulation creates a new basis of entitlement to veterans' benefits through the liberalization of the requirements for entitlement to benefits, a claim under the new law is a claim separate and distinct from the claim previously denied prior to the liberalizing law or regulation. See Spencer v. Brown, 4 Vet. App. 283 (1993); aff'd 17 F. 3d 368 (Fed. Cir. 1994). In such a case, there is no attempt to reopen the finally denied claim; rather, a different claim is presented for adjudication. Id. at 289. On August 6, 2012, the President signed a comprehensive legislative package, the "Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012," Public Law 112-154 (codified at 38 U.S.C. § 1710). This legislation authorized VA to provide medical services for 15 specific illnesses to certain veterans as well as their eligible family members, who were stationed at Camp Lejeune from January 1, 1957, to December 31, 1987. Section 506 of this Act amends 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully-developed original claims for compensation received from August 6, 2013, through August 5, 2015. Effective September 24, 2014, VA amended its regulations in order to implement the statutory mandate that VA provide health care to certain veterans who served at Camp Lejeune for at least 30 days during the period beginning on January 1, 1957, and ending on December 31, 1987. See 79 Fed. Reg. 57,410 (Sept. 24, 2014). The applicable regulation requires VA to furnish hospital care and medical services related to treatment of esophageal cancer, lung cancer, breast cancer, bladder cancer, kidney cancer, leukemia, multiple myeloma, myelodysplastic syndromes, renal toxicity, hepatic steatosis, female infertility, miscarriage, scleroderma, neurobehavioral effects, and non-Hodgkin's lymphoma. 38 C.F.R. § 17.400. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases found to be associated with contaminants present in the water supply at Camp Lejeune. As amended, 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for veterans who served at Camp Lejeune for no less than 30 days from August 1, 1953, to December 31, 1987, and who have been diagnosed with any of the following eight diseases: adult leukemia; aplastic anemia and other myelodysplastic syndromes; bladder cancer; kidney cancer; liver cancer; multiple myeloma; non-Hodgkin's lymphoma; and Parkinson's disease (emphasis added). The relevant administrative history of this claim is as follows: The Veteran is shown to have had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. The Veteran died in June 2007. The certificate of death states that the cause of his death was hairy cell leukemia. In September 2007, and October 2010, the RO denied claims for service connection for the cause of the Veteran's death. In each case, there was no appeal, and the RO's decisions became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. On May 12, 2013, the appellant filed to reopen the claim. See appellant's statement in support of claim (VA Form 21-4138), received on May 12, 2013. In May 2015, the RO denied the claim. The appellant appealed, and in June 2017 the Board granted the claim, based on the change in the law, effective March 14, 2017, that allowed presumptive service connection for certain diseases for veterans presumed to have been exposed to contaminants in the water supply at Camp Lejeune. See 38 U.S.C. § 1710; 38 C.F.R. §§ 3.307(a)(7), 3.309 (f). In November 2017, the RO effectuated the Board's decision. The RO awarded DIC and DEA benefits to the appellant on the basis that the Veteran's cause of death was related to his service. See 38 U.S.C. § 1310. The RO assigned effective dates for DIC and DEA of March 14, 2017. The Board finds that the criteria for an earlier effective date have not been met. As a general matter, where service connection is granted based on a change in the law, the effective date will not precede the effective date of the changed law. 38 U.S.C. § 5110 (g); 38 C.F.R. §§ 3.114 (a), 3.400(p). Revised regulations do not allow for their retroactive application unless those regulations contain such provisions and may only be applied as of the effective date. VAOPGCREC 3-2000 65 Fed. Reg. 33,422 (May 23, 2000). The appellant filed a claim for service connection for the cause of the Veteran's death as early as 2007 (which was denied that same year) and had another claim denied in 2010. However, a previously denied application does not preserve an effective date for a later grant of benefits based on a new application. Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). In May 2013, the appellant filed what is considered to be a "new" claim (when the subsequently enacted liberalizing legislation is considered). Spencer. This claim was granted by the Board in June 2017. The Board's grant of service connection was based on a liberalizing act, i.e., the addition of adult leukemia to the list of diseases found to be associated with contaminants present in the water supply at Camp Lejeune. See 82 Fed. Reg. 4173, 4180 (January 13, 2017). The presumption of service connection for adult leukemia for Camp Lejeune veterans was promulgated under the Secretary's broad authority under 38 U.S.C. § 501 (a) to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including regulations with respect to the nature and extent of proof and evidence in order to establish the right to benefits under such laws. Although the changes were published in the Federal Register on January 13, 2017, 38 U.S.C. § 501(a) does not require that a regulation become effective on the date of issuance or publication in the Federal Register. See e.g., McKinney v. McDonald, 796 F.3d 1377, 1382 (Fed. Cir. 2015). The rule which created the presumption that adult leukemia is associated with CLCW states that it is effective March 14, 2017. 82 Fed. Reg. 4173, 4180. The RO correctly assigned an effective date for DIC of March 14, 2017, as this is the effective date for the liberalizing law that was the basis for the grant of service connection for the cause of the Veteran's death, and the derivative benefit of DIC. Therefore, March 14, 2017 is the appropriate effective date. To the extent that the law allows an effective date prior to the effective date of the changed law that is the basis for the grant of the claims, the appellant is not shown to have filed an original claim for compensation that was received between August 6, 2013 and August 5, 2015. Under the circumstances, the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the liberalizing law that added adult leukemia to the list of presumptive diseases afforded service connection in CLCW cases, March 14, 2017, is the date when entitlement to benefits arose. Given the foregoing, the earliest possible effective date for the grant of service connection for the cause of the Veteran's death, and the derivative grant of DIC, is March 14, 2017, and that is the effective date that was correctly assigned by the RO. See 38 C.F.R. §§ 3.114, 3.400 (p). Accordingly, the claim is denied. 2. Effective date prior to March 14, 2017 for DEA. Educational assistance is available to a child or surviving spouse of a veteran who, in the context of this issue on appeal, either died of a service-connected disability or died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. In this decision, the Board has determined that the earliest possible effective date for service connection for the cause of the Veteran's death, and DIC, is March 14, 2017. Accordingly, the appellant is considered to be an "eligible person" who is entitled to receive educational benefits no earlier than March 14, 2017. See 38 C.F.R. § 3.807 (a)(4). Thus, March 14, 2017 is the earliest date that entitlement to DEA arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, an effective date for DEA prior to March 14, 2017 is denied. The law is dispositive without regard to any other facts in the case. Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S.E., 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.