Citation Nr: 21066101
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 20-29 153
,DATE: October 28, 2021

ORDER

Entitlement to an effective date earlier than August 1, 1990, for the grant of service connection for cause of death is denied.

FINDING OF FACT

The funeral home's April 30, 1985 application for burial benefits cannot serve as the basis for an earlier effective date for Dependency and Indemnity Compensation (DIC) benefits under Nehmer or 38 C.F.R. § 3.816(d) because the application for burial benefits was not filed by the Appellant or her representative, did not include an implied claim for DIC, was not adjudicated as a DIC claim, and even assuming it was adjudicated as a DIC claim that adjudication was not conducted on or after September 25, 1985 (the effective date of 38 C.F.R. § 3.311a).

CONCLUSION OF LAW

The criteria for an effective date prior to August 1, 1990, for service connection for cause of death have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1951 to September 1971, including service in the Republic of Vietnam.  The Veteran died in April 1985. The Appellant is his surviving spouse.

This matter is on appeal from a May 2016 rating decision.    

In June 2020, the Board remanded the Appellant's claim for issuance of a Statement of the Case.

In July 2021, the Appellant and her son testified at a hearing held before the undersigned Veterans Law Judge.

Nehmer Background

The Appellant seeks an earlier effective date for Dependency and Indemnity Compensation (DIC) benefits under Nehmer.  The Appellant, through her attorney, maintains that she is a Nehmer-class member.  Her attorney further argues that there are two different kinds of death benefits; one was burial benefits, and one was DIC.  The Appellant's attorney contends that "they're the same because under the Nehmer final stipulation "when you apply for burial benefits, you're applying for -- you have to prove, you know, death by a service-connected disability. And when you're applying for DIC you have to prove death by a service-connected disability.  Her attorney maintains that because she filed a claim earlier, when presumptive service connection was made available in 1994, the effective date of the grant of DIC should be retroactive to the date of her original claim.

In addition, the Appellant's attorney asserts that the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Williams v. Principi, 310 F.3d 1374 (Fed. Cir. 2012) has no precedential value because the precedent was "not within the jurisdiction of the Federal Circuit to rule on what the Nehmer stipulation does or does not cover."  See Transcript of July 2021 Board hearing at page 7; see also November 2020 written argument of Appellant's attorney (Williams v. Principi, 310 F.3d 1374 is a published decision but it cannot be facially precedential.  It is bad law based on false factual premises and incomplete legal analysis.") (Emphasis in original).

In 1984, Congress implemented the "Veterans' Dioxin and Radiation Exposure Compensation Standards Act," which required VA "to prescribe regulations regarding the determination of service connection of certain disabilities of veterans who were exposed to dioxin in the Republic of Vietnam while performing active military [service]."  Pub. L. No. 98-542 (Oct. 24, 1984).  See also Nehmer v. U.S. Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I).  In response, VA enacted 38 C.F.R. § 3.311a, which reads in part as follows:

(c) Service-connection based on dioxin exposure....  [E]xposure to dioxin together with the development of the following disease within the period specified is sufficient to establish service-connection for resulting disability: Chloracne manifested not later than three months from the date of exposure.

(d) Diseases not associated with dioxin exposure.  Sound scientific and medical evidence does not establish a cause-and-effect relationship between dioxin exposure and the following diseases: (1) Porphyria cutanea tarda.  (2) Soft tissue sarcomas.  (3) Any other disease not specified in paragraph (c) of this section.

50 Fed. Reg. 34452 (1985).  The effective date of § 3.311a is September 25, 1985.  Id.  

The Nehmer line of cases arose from a class-action lawsuit filed by Vietnam veterans and their survivors challenging this regulation.  Nehmer v. VA of the Gov't of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans' Admin., 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. U.S. Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I).  

Litigation began on February 2, 1987, when Vietnam veterans and their survivors filed a class action lawsuit alleging that "VA must enact new guidelines and void all compensation decisions made on the basis of [§ 3.311a]."  Nehmer v. United States Veterans Admin., 118 F.R.D. 113, 116 (N.D. Cal. 1987) (Nehmer Class Certification).  At the outset, the Nehmer court certified a class consisting of the following individuals: 

[A]ll current or former service members, or their next of kin (a) who are eligible to apply to, who will become eligible to apply to, or who have an existing claim pending before the Veteran's Administration for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin or (b) who have had a claim denied by the VA for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin[.]

Id. at 116 (internal citation omitted).  

On May 2, 1989, the Nehmer court "invalidate[d] the portion of the Dioxin regulation which denies service connection for all other diseases other than chloracne" and "also void[ed] all benefit denials made under section 311a(d) ...."  Nehmer I, 712 F. Supp. at 1423.    

Effective October 26, 1990, non-Hodgkins lymphoma was presumptively linked to exposure to Agent Orange.  38 C.F.R. § 3.313(b).  Subsequently, Congress passed the Agent Orange Act of 1991, which established presumptive service connection for a list of diseases resulting from Agent Orange exposure.  38 U.S.C. § 1116.

In May 1991, the Nehmer parties agreed to a Final Stipulation and Order setting forth VA's responsibilities for future rulemaking and disability compensation to class members.  See Nehmer II, 32 F. Supp. 2d at 1177 (describing the May 1991 Final Stipulation and Order).  The May 1991 Final Stipulation and Order required "VA to reopen and readjudicate previously denied claims that were voided by the Court's May 1989 order if and when the VA issues new Agent Orange regulations service-connecting diseases other than chloracne."  Id. (describing the May 1991 Final Stipulation and Order).  Pursuant to these orders and the Agent Orange Act, VA adopted new regulations creating a list of presumptive Agent Orange diseases.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).

Non-Hodgkin's lymphoma was added to the list of diseases provided under § 3.309(e) in February 1994. See 59 Fed. Reg. 5107(Feb. 3, 1994) (codified at 38 C.F.R. § 3.309(e)).

In February 1999, the Nehmer court addressed VA's argument that the May 1991 Final Stipulation and Order did not require VA to readjudicate claims "unless (1) the claim specifically alleged that Agent Orange (or herbicides) was a factor in the veteran's death or injury, or (2) the VA's denial of the benefits expressly cited to 38 C.F.R. § 3.311a as grounds for the denial."  Nehmer II, 32 F. Supp. 2d 1175, 117778 (N.D. Cal. 1999).  The Nehmer court held that this position was inconsistent with the May 1991 Final Stipulation and Order and ordered VA to readjudicate claims denied under those incorrect premises.  Id. at 1284.  

Shortly thereafter, the Nehmer plaintiffs filed an Emergency Motion for Enforcement and Supplementation of Prior Orders.  In response, the Nehmer court issued a Final Order and Stipulation (Nehmer Final Order) that reads in part as follows:

3. As soon as a final rule is issued service connecting, based on dioxin exposure, [any] disease which may be service connected in the future pursuant to the Agent Orange Act of 1991, 38 U.S.C. § 316(b), the VA shall promptly thereafter readjudicate all claims for any such disease which were voided by the Court's Order of May 3, 1989, as well as adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order, without waiting for final rules to be issued on any other diseases.

[...]

5. For any ... disease which may be service connected in the future pursuant to paragraph 3 above, as to any denials of claims which were voided as a result of the Court's May 3, 1989 Order, the effective date for [DIC], if the claim is allowed upon readjudication pursuant to paragraphs 3 and 4 above, will be the date the claim giving rise to the voided decision was filed ..., assuming the basis upon which compensation is granted after readjudication is the same basis upon which the original claim was filed, or the date the claimant became disabled or death occurred, whichever is later.  In the event the basis upon which a claim for compensation benefits is granted after readjudication is different than the basis for the original claim giving rise to the voided decision, the effective date for beginning disability compensation or DIC will be the date on which the claim asserting the basis upon which the claim is granted was filed, or the date the claimant became disabled or death occurred, whichever is later.  For any claim for any such disease which was not filed until after May 3, 1989, the effective date for beginning disability compensation or DIC will be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later.

Nehmer v. United States VA, C.A. No. C-86-6160 (TEH), 1991 U.S. Dist. LEXIS 22110, *25 (N.D. Cal. May 20, 1991) (Nehmer Final Order).  

The Ninth Circuit upheld Nehmer II.  See Nehmer III, 284 F.3d at 1160.  

The Nehmer regulation allows the following for DIC claims:

(1) If VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section.

(2) If the class member's claim for DIC for the death 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 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 as otherwise provided in paragraph (d)(3) of this section. In accordance with § 3.152(b)(1), a claim by a surviving spouse or child for death pension will be considered a claim for DIC. In all other cases, a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC.

38 C.F.R. § 3.816(d).  The effective date of this regulation is August 25, 2003.  68 Fed. Reg. 50966.  

September 25, 1985, corresponds to the effective date of § 3.311a.  May 3, 1989, corresponds to the date of the Nehmer decision invalidating § 3.311a(d).  

Factual Background

The Veteran died on April [REDACTED], 1985.  His death certificate lists the "Immediate Cause" of death as "Cardio  respiratory failure."  Also, per the death certificate, his death is "[d]ue to, or a consequence of: Myeloma."  The Veteran had not been awarded service connection for any disorders and had no pending claims for compensation benefits.  The death certificate lists the Appellant's address as a P.O. Box.  

On April 30, 1985, the RO received a VA 21-530 application for Burial Benefits.  The "Claimant" box is not signed by the Appellant.  Rather, the "Claimant" is listed as "B.M. Funeral Home Inc."  The "Relationship to the Veteran" is listed as "Creditor."  The "Signature of Claimant" box is filled out by S.R, whose "official position of person signing on behalf of firm, corporation or state agency" is "Secretary."  The Appellant is identified as the "PERSON WHO AUTHORIZED SERVICES."  The Appellant's address is the same P.O. Box listed on the Veteran's death certificate.  

On May 7, 1985, the RO generated a "Burial Award" document awarding plot/internment allowance to the funeral home.  This decision bears a stamp reading: "NO EVIDENCE OF S/C DEATH."  The funeral home is indicated as "Claimant" and the Appellant is indicated as "person to be notified."  

On May 8, 1985, VA issued three notification letters.  The first was sent to the funeral home.  It indicates that the claim for burial benefits is denied because at the time of his death the Veteran was not in receipt of compensation benefits and had no pending claims for compensation benefits.  This letter contains a line stating that "the Veteran's death was not service-connected."  

The second May 8, 1985 letter was sent to the Appellant at the same address indicated on the death certificate and the April 30, 1985 VA 21-530.  This letter indicates that "a plot or internment allowance of $150" is being paid to the funeral home.  The letter further states that VA has "no evidence to show that the Veteran's death was due to a service-connected condition."  This letter was sent to the Appellant because she "authorized the funeral and burial services for the Veteran ...."

The third May 8, 1985 letter was also sent to the Appellant at the same address indicated on the death certificate and the April 30, 1985 VA 21-530.  This letter reads in part as follows:

We are sorry to learn of the Veteran's death.  We ... wish to offer assistance to the surviving spouse, children and parents in applying for benefits to which they may be entitled.  The benefits are explained in the enclosed application form ....

Important.  A completed application should be returned to us as soon as possible for the following reasons:

Unless a claim for dependency and indemnity compensation is filed within one year from date of death, that benefit, if awarded, is not payable from a date earlier than the date the claim is received in the Veterans Administration.  

The Appellant's representative has conceded that the Appellant received a copy of this letter.  See August 2020 brief (Red Herring #2 point).  

On May 9, 1985, VA received a VA 27-2008 Application for VA 27-2008 Application for United States Flag for Burial Purposes.  The "Claimant" is identified as "B.M. Funeral Home Inc." and is signed by S.R. in her capacity as "Secretary."  The Appellant's address is the same as listed on the death certificate, the VA 21-530, and VA letters dated May 8, 1985.  

On November 19, 1985, the Appellant submitted a VA 28-8834 Application for Reimbursement of Headstone or Marker Expenses.  The Appellant signed this form.  Her mailing address is the same P.O. Box listed on the death certificate, VA 21-530, VA 27-2008, and VA letters dated May 8, 1985.  

The Appellant was a member of a class action lawsuit in the Eastern District of New York on behalf of Agent Orange-exposed veterans.  As part of this action, the Appellant was sent a notification letter on October 14, 1986.  This letter is addressed to the same P.O. Box listed on the 1985 documents described above.  

On April 15, 1989, the Appellant signed an "Application for Survivor Payment" as part of the "Agent Orange Payment Program."  She lists the "[c]ontributing cause of death" as "myeloma non-Hodgkins lymphoma."  Her address is the same P.O. Box listed in the 1985 and 1986 documents described above.  She received payment on July 13, 1989.  This document was received by VA on July 23, 1990.  

On July 23, 1990, VA received a VA 21-534 Application for DIC.  This application was filled out and signed by the Appellant.  This letter identifies the same P.O. Box listed in the 1985, 1986, and 1989 documents described above.  In September 1990, the Appellant submitted private medical records indicating that the Veteran had been diagnosed with and treated for non-Hodgkins lymphoma.  

On March 25, 1991, VA awarded DIC benefits from August 1, 1990.  The Appellant appealed, seeking an earlier effective date of April 26, 1985, the day after her husband's death.  

On July 23, 1991, the Appellant submitted a VA 21-530 Application for burial benefits.  On July 31, 1991, the RO awarded $950.00, based on death resulting from a service-connected condition.  

In June 1992, the Board denied the Appellant's claim for an earlier effective date for DIC.  

Through February 2014, VA continued to send the Appellant correspondence at the P.O. Box indicated in the above records.  In June 2015, the Appellant submitted a statement indicating that her address had changed.  

Also in June 2015, the Appellant filed a new claim for an earlier effective date for DIC.  This claim was denied and the Appellant appealed.  In February 2017, a Statement of the Case (SOC) adjudicated entitlement to accrued benefits, but not entitlement to an earlier effective date.  In June 2020, the Board remanded for issuance of an SOC adjudicating entitlement to an earlier effective date for DIC, which issued later that month.  The Appellant appealed and requested an additional hearing.  In August 2020, the Appellant's representative submitted a brief arguing for entitlement to an earlier effective date.  In July 2021, the Appellant, her son, and her representative appeared at a hearing before the undersigned.  In October 2021, the Appellant's representative submitted a second brief.  

1. Entitlement to an effective date earlier than August 1, 1990 from the grant of service connection cause of death

The Appellant argues that the April 30, 1985 application for burial benefits should be considered a claim of service connection for cause of death.  Further, since according to the Appellant an implicit denial of DIC was voided under Nehmer, the effective date of the DIC award should be April [REDACTED], 1985, the day after the Veteran's death.  

The Board finds that the Appellant did not submit a claim for DIC, implied or formal, prior to July 23, 1990, in that neither she nor an accredited representative filed the April 30, 1985 application for burial benefits.  Under regulations in place in 1985, informal claims for benefits were governed as follows:

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Veterans Administration, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

38 C.F.R. § 3.155 (1985).  See also 38 C.F.R. § 3.1(p) (1985) ("'Claim'  'Application' means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.").  

The April 1985 application for burial benefits was not submitted by the Appellant.  Rather, it was submitted by a funeral home "Creditor" and signed by a secretary of the funeral home.  Neither a funeral home nor its secretary is an individual who could file an informal claim for benefits on behalf of the Appellant in 1985.  See 38 C.F.R. § 3.155(a).  Even if permitted, there was no power of attorney executed for the funeral home or its secretary at the time that the application for burial benefits was submitted.  See 38 C.F.R. § 3.155(b).  For this reason, the preponderance of the evidence is against a finding that the April 1985 application for burial benefits is a claim for benefits as defined by VA in 1985.  

The same conclusion is reached under the Nehmer regulations.  Under those provisions "a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submission may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC."  38 C.F.R. § 3.816(d)(2).  Unfortunately, for the reasons described, the funeral home, not the Appellant, is the claimant on the April 1985 burial benefits application.  Further, as the funeral home does not have standing to receive DIC, it cannot be concluded that it intended to receive DIC benefits in response to its application for burial benefits.  It also cannot be concluded that the Appellant should expect to receive DIC benefits based on the filing of a non-DIC claim by a party that does not have standing to receive DIC benefits or act as power of attorney on her behalf.  For these reasons, the Board finds that the non-accredited funeral home's April 1985 burial benefits application cannot be viewed "as indicating an intent to apply for DIC."  38 C.F.R. § 3.816(d)(2).  

The Appellant's representative argues that in 1985 the RO inferred a claim for DIC and adjudicated a claim for DIC.  This argument is based on the VA documents dated May 7, 1985, and May 8, 1985, which indicate that there is no evidence of service-connected death.  

The Board disagrees with the implication that there was a basis for implying a claim for DIC benefits based on the April 1985 burial benefits application.  This form was submitted by the funeral home, not the Appellant.  As the funeral home never had standing to receive DIC, it cannot be said that the funeral home's application for burial benefits carries an implied claim for DIC benefits that the funeral home would be precluded from recovering under the law.  As the funeral home was never an accredited representative of the Appellant, the funeral home never had standing to apply for DIC on behalf of the Appellant.  Rather, the funeral home identifies itself as "creditor" in its original application.  

Further, although VA may award burial benefits in response to an award of DIC, it cannot be said that a claim for DIC is implied in claim for burial benefits on behalf of a Veteran who has never been awarded service connection for any disorders.  Importantly, the United States Court of Appeals for Veterans Claims (Court) has held that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  The April 1985 burial benefits application made no reference to the Veteran's death being due to service.  For these reasons, the preponderance of the evidence is against a finding that there was an inferred claim for DIC in the funeral home's April 1985 burial benefits application.

The Board also disagrees with the implication that a DIC claim was adjudicated prior to July 1990.  A May 7, 1985 "Burial Award" bears a stamp reading "NO EVIDENCE OF S/C DEATH."  This document indicates a $150 "Plot/Internment" award but no compensation for "S/C burial" or "NSC burial."  Importantly, this document was generated shortly after a formal claim for burial benefits was received by VA from the funeral home.  The funeral home's claim for benefits is the first apparent evidence of the Veteran's death in the claims file.  

The May 7, 1985 "Burial Award" is followed by two letters dated May 8, 1985.  The first was to the funeral home, denying burial benefits based on failure to comply with listed elements of burial benefits, including that "the Veteran's death was not service-connected."  A second letter was sent to the Appellant, indicating that a "plot or internment allowance of $150" was being awarded to the funeral home but that there was "no evidence to show that the Veteran's death was due to a service-connected condition."  

At the time of the Veteran's death, the highest level of burial benefits was provided where a veteran died as a result of a service-connected disability or disabilities.  38 C.F.R. § 3.1600(a) (1985).  If a veteran's death was not service-connected, entitlement was based upon the following conditions: (1) At the time of death the veteran was in receipt of pension or compensation (or but for the receipt of military retirement pay would have been in receipt of compensation); (2) The veteran had an original or reopened claim for either benefit pending at the time of the veteran's death; or (3) The deceased was a veteran of any war or was discharged or released from active military, naval, or air service for a disability incurred or aggravated in line of duty.  38 C.F.R. § 3.1600(b) (1985).  Effective July 7, 2014, VA removed §§ 3.1600 through 3.1612 and replaced them with renumbered regulations.  See 79 Fed. Reg. 32,653 (June 6, 2014) (codified at 38 C.F.R. §§ 3.1700 through 3.1713).  The current version of these regulations contains language largely identical to the regulations that existed in 1985.  See 38 C.F.R. §§ 3.1704(b), 3.1705(b).  

At the time of the May 8, 1985 letters, the Veteran was not receiving compensation benefits and had no pending claims for compensation benefits.  It follows that there was no evidence of service-connected death.  A finding that there is no evidence of service-connected death is relevant in assessing whether the Veteran is entitled to service-connected burial benefits.  It also follows that a finding to this effect would be included in a burial benefits decision without reference to whether a DIC claim was pending.  

In light of these facts, and that at the time only a claim for burial benefits had been filed by a funeral home (but not the Appellant), the Board finds that the "not service-connected" references are not evidence of a VA adjudication of DIC.  Rather, such references are best interpreted as meaning that one of the elements of burial benefits was not met, such benefits being the subject of the May 8, 1985 letter to the funeral home.  Further, it is possible that the May 7, 1985 "Burial Award" was never sent to the Appellant, in that she is referenced as a "person to be notified," which would be a strange notation for a person intended to receive a copy of the document in question.  Taken together, the Board finds that the RO never adjudicated DIC in 1985, and that the "not service-connected" notations in the May 8, 1985 letters reflect the RO's denial of service-connected burial benefits.  The "not service-connected" notations do not reflect a separate adjudication of a DIC claim.  

The May 8, 1985 letter informing the Appellant that she has one year from the Veteran's death to file a claim for DIC is not to the contrary.  This letter makes no reference to an incomplete DIC application and was sent shortly after the first communications to VA indicating that the Veteran had died.  

In light of the timing of the letter, the content of the letter, and Mitscher, the Board finds that this May 8, 1985 letter was sent in response to VA being notified of the Veteran's death, not in response to an a DIC application submitted by the Appellant or a DIC application implied by the RO.  The Appellant's representative has conceded that the Appellant received a copy of the May 8, 1985 letter indicating that she had one year to submit a claim for DIC.  See August 2020 brief (Red Herring #2 point).

For these reasons, the Board finds that in 1985 the RO never inferred a claim for DIC and never adjudicated a claim for DIC.  Rather, the "no evidence of service-connected death" notations were included in the May 1985 documents because this is one of the elements of service-connected burial benefits that were not satisfied.  These notations were not included as part of an adjudication of DIC.

The Appellant's attorney also argues that in 1985 the Appellant should not have been required to mention that the Veteran's death was related to service because at that time neither myeloma nor non-Hodgkins lymphoma was presumptively linked to herbicide agent exposure.  Ultimately fatal to this argument is that the April 1985 application cannot be considered a claim by the Appellant, as articulated above.  

Further, § 3.816 indicates that a claim for DIC due to non-Hodgkins lymphoma was required even when there were no regulations presumptively linking this disorder to herbicide agent exposure.  Section 3.816(d)(1) is applicable where "VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989," in which case the effective date shall be the latter of "the date VA received the claim on which such prior denial was based or the date the death occurred ...."  Section 3.816(d)(2) is applicable where "the class member's claim for DIC for the death was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statue or regulation ...."  The dates noted in the regulation, from September 25, 1985, to May 3, 1989, correspond to the time period from when VA promulgated 38 C.F.R. § 3.311a and the date on which Nehmer I was issued voiding § 3.311a.  

The earliest statute establishing service connection for a non-chloracne disorder became effective on October 26, 1990, for non-Hodgkins lymphoma only.  See 38 C.F.R. § 3.313(b).  Other disorders were added to § 3.309(e) effective May 19, 1993.  Section § 3.816(d) clearly contemplates claims being filed, and decisions being adjudicated, prior to these dates.  This indicates that a claim was required for an underlying disorder even when that underlying disorder was not presumptively linked to herbicide agent exposure.   

The Nehmer litigation is also consistent with the idea that a claim for DIC due to non-Hodgkins lymphoma was required even when there were no regulations presumptively linking this disorder to herbicide agent exposure.  Nehmer I "invalidate[d] the portion of the Dioxin regulation which denies service connection for all other diseases other than chloracne" and "also void[ed] all benefit denials made under section 311a(d) ...."  712 F. Supp. at 1423.  Such an order assumes that a claim for benefits was filed for an herbicide agent-linked disease when only chloracne was presumptively linked to herbicide agent exposure.  

The subsequent Nehmer cases make no modifications to this requirement.  It follows that the Nehmer litigation is also consistent with the idea that a claim was required even before an underlying disorder was presumptively linked to herbicide agent exposure.  

Taken together, § 3.816(d) and Nehmer require an adjudication of DIC at a time when there were no regulations presumptively linking a non-chloracne disorder to herbicide agent exposure.  There could have been no such adjudication unless a claim had been filed.  It follows that to receive the benefits of § 3.816(d) or Nehmer, a claim was required, even before the underlying disease was presumptive linked to herbicide agent exposure.  To hold that the Appellant was not required to file a claim would circumvent these requirements.  For these reasons, the Board finds that to receive the benefits of § 3.816(d), a claim for DIC was required, even though non-Hodgkins lymphoma was not at the time presumptively linked to herbicide agent exposure.  

The two letters sent to the Appellant on May 8, 1985, are consistent with this requirement.  The first letter informed her that a plot or internment allowance was being paid to the funeral home and that VA had "no evidence to show that the Veteran's death was due to a service-connected condition."  The second letter instructed her that she had one year to file a claim for DIC.  In considering these two letters together, VA was arguably allowing the filing of a DIC claim even though the underlying disorder was not related to the Veteran's service.  The simultaneous mailing of these two letters is consistent with the idea that the Appellant could have filed a DIC claim in 1985.

Although the Appellant filed her claim on July 23, 1990, she would not have received compensation any earlier than August 1, 1990, the date reflected in her award of DIC.  For a DIC award, payment of monetary benefits may not be made for any period prior to the "first day of the calendar month following the month in which the award became effective."  38 U.S.C. § 5111(a)(1); 38 C.F.R. § 3.31.  

In assigning a date of August 1, 1990, it appears that the RO was indicating the first date from which she would receive benefits, rather than the date her claim was filed.  Consistent with this, the March 1991 decision awards DIC at a monthly rate of $698.00 from August 1, 1990, and at $735.00 from January 1, 1991.  Since the assignment of an effective date of July 23, 1990, would not provide the Appellant with any higher degree of compensation than the effective date indicated in the March 1991 decision, the Board will not disturb the assigned date of August 1, 1990.  

Further, the effective date of August 1, 1990, is actually earlier that what should have been assigned at the time of the March 1991 decision.  In March 1991, the effective date provisions of § 3.816(d) were not in effect, and § 3.309(e) did not list non-Hodgkin's lymphoma.  Rather, the only basis for awarding DIC for non-Hodgkins lymphoma was § 3.313(b), which has an effective date of October 26, 1990.  Technically, the Appellant should have been awarded DIC from the effective date of § 3.313(b).  

In conclusion, the Appellant is entitled to an effective date no earlier than August 1, 1990, the date already awarded to her.  Non-Hodgkins lymphoma became presumptively linked to herbicide agents in a regulation that became effective on October 26, 1990.  38 C.F.R. § 3.313.  

It was formally added to the list of diseases associated with exposure to herbicide agents in a regulation that became effective on May 19, 1993.  38 C.F.R. § 3.309(e).  This means that the Appellant's July 23, 1990 claim was filed 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 ...."  38 C.F.R. § 3.816(d)(2).  

As the Appellant's claim was not received within one year of the Veteran's death, the Appellant is entitled to an effective date of "the later of the date such claim was received by VA," which is July 23, 1990, or "the date the death occurred," which is April [REDACTED], 1985.  38 C.F.R. § 3.816(d)(2).  The later of these dates is July 23, 1990.  The preponderance of the evidence is against an earlier effective date for DIC.  

Appellant's Testimony

In denying an effective date prior to August 1, 1990 for DIC, the Board has considered the arguments raised by the Appellant and her son in the January 1992 hearing transcript and in other statements.  The January 1992 hearing was held after being requested during the appeal of the March 1991 RO decision denying an earlier effective date for DIC.  Following that hearing, in June 1992 the Board continued the denial of an earlier effective date.

In her January 1992 hearing testimony, the Appellant's son explains how in January 1985 his mother visited a VA office and "asked them if there were any benefits she could file for with the VA as the Agent Orange Veterans Payment Program was not a part of the Veterans Administration."  She was told that there were none.  

After the Veteran's death, she returned to the office "and asked if there were any survivor benefits that she could apply for."  She was told "that there was no need to fill out any paperwork for a claim as nothing had been proven in the courts and no ruling had been forthcoming."  

It was not until 1990 when she was encouraged to file a claim for benefits.  After the Board chairman asked, "You didn't fill out any papers at all?" the Appellant responded, "No, I was, you know discouraged when they said there was nothing you could do."  Her son later explained that prior to 1990 two VA offices "both discouraged [the Appellant] from filing a claim, any kind of written paperwork."  

The Board finds that this testimony does not support an earlier effective date for DIC.  It is unfortunate that the Appellant was discouraged from filing her claim in 1985.  However, to the extent the Appellant relied on erroneous information provided by VA employee of a VA medical center, the VA is not liable for the Veteran's reliance on said erroneous information.  See Harvey v. Brown, 6 Vet. App. 416, 424 (1994); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice by a government employee cannot be used to estop the government from denying benefits).  

Also, during the January 1992 hearing, the Appellant's indicated that neither he nor the Appellant received a copy of the VA letter dated May 8, 1985.  His mother reasserted this argument in an August 1991 letter.  

Since that time, the Appellant's representative has conceded that the Appellant was sent this letter.  Specifically, "Red Herring #2" point of the August 2020 brief states: "[Appellant] further concedes that the VA ... correctly provided notice to [the Appellant] of the need to complete a formal claim for DIC within a year of death ... and indicated to Claimant that VA Form 21-534 was enclosed with such notice."  The Board therefore finds that the Appellant has waived any argument regarding non-receipt of the May 8, 1985 letter explaining the filing of a DIC application.  

However, the testimony about non-receipt does not support an earlier effective date, even without the August 2020 concession and taking the Appellant's testimony as true.  There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15, 47 S. Ct. 1 (1926)).  The Court has applied the presumption of regularity to correspondence mailed by an RO.  See Woods v. Gober, 14 Vet. App. 214, 22021 (2000); Mindenhall v. Brown. 7 Vet. App. 271, 274 (1994).

This presumption "may be rebutted by the submission of clear evidence to the contrary."  Ashley, 2 Vet. App. at 309 (internal citations and quotations omitted).  Such rebuttal may be found "where there is (1) evidence that VA used an incorrect address on the Board mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the Board decision."  Boyd v. McDonald, 27 Vet. App. 63, 72 (2014) (internal citations omitted).  Once rebutted, the government "has the burden to show that the Board decision was mailed in the appropriate manner or that the appellant actually received a copy of the decision."  Id. (internal citations and quotations omitted).  But an "appellant's statement of non-receipt, standing alone, is not the type of 'clear evidence to the contrary' which is sufficient to rebut the presumption of regularity of the notice."  Mindenhall, 7 Vet. App. at 274.

The letter in question was addressed to the same P.O. Box that the Appellant was using between the Veteran's April 1985 death and at least February 2014.  During this time period, there is no evidence that correspondence sent to this P.O. Box was returned as undeliverable.  Despite the assertions that the May 8, 1985 letter was never received, the record does not otherwise document that this letter was not mailed.  As such, the Appellant's assertions in this regard are insufficient to overcome the presumption of regularity.  Consequently, the presumption of regularity is not rebutted, and the Board must conclude that the Appellant received this correspondence.

In a June 2015 statement, Appellant argues that under 38 C.F.R. § 3.816(d)(2) statements and submissions indicating an intent to apply for DIC can be accepted as a claim for such benefits.  She requests that the Board infer such an intent based on her November 15, 1985 claim for headstone reimbursement.  The Appellant further argues this point in her March 2019 VA Form 9.  

The November 1985 submission and the accompanying funeral home bill make no reference to the Veteran's death being related to service.  It therefore cannot be said that "the claimant's application and other supporting statements and submission may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC."  38 C.F.R. § 3.816(d)(2).  

Consistent with this, the Court has held that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  Further, the Board is aware of no current or prior VA policy to infer a DIC claim based on the submission of an application for reimbursement of headstone or marker expenses.  Also, the regulations providing reimbursement for a headstone contain no elements addressing whether the Veteran died from a service-connected disorder.  For these reasons, the Board finds that the November 1985 submission cannot be interpreted as an implied claim for DIC benefits.  

For these reasons, the Appellant's testimony is not by itself sufficient to support an effective date prior to August 1, 1990, for DIC.  

April 2020 Hearing Testimony

In denying an effective date prior to August 1, 1990 for DIC, the Board has considered the arguments contained by the Appellant's representative in the April 2020 hearing, which related to the Appellant's claim of entitlement to accrued benefits.  During the July 2021 hearing testimony, the Appellant's representative stated that "testimony from [the April 2020] hearing is also relevant ... to review."  

The Appellant's representative first states that "the funeral home as a creditor applied for benefits for the Veteran," after which "VA issue[d] a memo and a decision indicating no evidence of service-connected death."  The Board disagrees with the implication that VA adjudicated a DIC claim in response to the funeral home's 1985 application for burial benefits, for the reasons articulated above.  

The Appellant's representative then repeats the testimony that the Appellant and her son "never got [the May 1985] letter" that discussed applying for DIC.  The Appellant's representative conceded her receipt of this letter in "Red Herring #2" point of the August 2020 brief.  Further, this letter was addressed to the same P.O. Box used by the Appellant from the Veteran's 1985 death until at least February 2014.  As the proper address was used, any arguments of non-receipt are insufficient to overcome the presumption of regularity so as to support a finding that the letter was never received.  

The Appellant's representative then states "that the VA clearly did infer" a claim for DIC because "mak[ing] the determination whether it should be as service-connected burial benefits or nonservice-connected benefits made them make the determination whether the cause of death was service-connected."  As already described, the Board disagrees with the implication that there was an inferred claim for DIC benefits in the funeral home's April 1985 burial benefits application.  The Board also disagrees with the implication that the RO adjudicated a DIC claim in May 1985, for reasons also described above.  

The Appellant's representative then argues that because there was an inferred DIC claim adjudicated in 1985, the Appellant should be afforded DIC from the date of the 1985 inferred DIC claim.  The reason is "that it is one of the Nehmer stipulations that the review from Nehmer requires reviewing the evidence at the time of [the] prior decision" and "the effective date still goes back because the evidence was of record in the earlier case."  As described, the Board disagrees with the implication that in 1985 there was an inferred DIC claim or an adjudication of DIC.  

However, even taken as true that the May 1985 letters constitute an adjudication of DIC benefits, the Appellant would not be entitled to an effective date prior to August 1, 1990.  By regulation, earlier effective date provisions for previously-denied DIC claims only apply where "VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989 ...."  38 C.F.R. § 3.816(d)(1).  These dates correspond to the time period between when VA promulgated 38 C.F.R. § 3.311a and the date on which Nehmer I voided that regulation.  The alleged DIC adjudications in question occurred no later than May 8, 1985.  Even assuming that the May 1985 adjudication was a DIC decision, it would not qualify for an earlier effective date under Nehmer and § 3.816(d)(1) because the adjudication occurred prior to September 25, 1985 effective date of § 3.311a. 

The Appellant's representative then references a hypothetical example where, if a Veteran files a claim for an elbow disorder after "ischemic heart disease ... became a presumptive" and there is evidence of ischemic heart disease and herbicide agent exposure, then "the effective date still goes back because the evidence was of record in the earlier case."  Stated another way, "it seems to me like for the last 35 years, the VA has required an application that is not required."  

To the extent that the Appellant's attorney maintains that VA would grant service connection for a disorder for which a claim is not filed, the Board disagrees.  As described, a claim for benefits "must identify the benefit sought."  38 C.F.R. § 3.155(a) (1985).  See also 38 C.F.R. § 3.1(p) (1985) ("'Claim'  'Application' means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.").  As the funeral home's April 1985 burial benefits application does not identify DIC benefits, it cannot be said that this application is a claim for DIC benefits.  Consistent with this, the Court has held that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  The funeral home's April 1985 application contains no such indication.    

To the extent that the Appellant's representative is arguing that VA would award DIC prior to the filing of a claim for compensation benefits, the Board also disagrees.  For compensation under the Nehmer regulations, effective dates are governed based on whether "VA denied [compensation or DIC] in a decision in a decision issued between September 25, 1985 and May 3, 1989" and whether the claim "was 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 ...."  38 C.F.R. § 3.816(c)(d).  Outside of those regulations, effective dates generally "shall not be earlier than the date of receipt of application therefor."  38 U.S.C. § 5110(a).  The main exceptions to that rule apply to claims filed within one year the Veteran's discharge from service or the Veteran's death.  See 38 U.S.C. § 5110(b)(1); 38 C.F.R. §§ 3.816(c)(3), (d)(3).  These exceptions are inapplicable where, as here, the first DIC claim was filed in 1990, well after the Veteran's 1971 discharge and 1985 death.  

The Appellant's attorney also points out that the RO never issued a Statement of the Case (SOC) addressing entitlement to an earlier effective date under Nehmer.  The February 2017 SOC and August 2017 Supplemental Statement of the Case (SSOC) only adjudicated entitlement to accrued benefits, not entitlement to an earlier effective date for DIC in light of Nehmer.  In June 2020, the Board remanded the Appellant's appeal to issue an SOC adjudicating entitlement to an earlier effective date for DIC.

For these reasons, the arguments by the Appellant's representative at the April 2020 hearing are insufficient to support an earlier effective date for the award of DIC.  

August 2020 Brief 

In denying an effective date prior to August 1, 1990, the Board has considered the arguments made by the Appellant's representative in the August 2020 brief.  

The Appellant's representative opens with a series of numbered points.  The Board shall specifically address Points 13 and 57.  

Points 1 and 2 state that the Appellant "submitted an original claim related to service connection for cause of death ... of her husband" and that this "claim was based only on myeloma."  The death certificate submitted with the April 1985 burial benefits application references only "myeloma."  An Application for Survivor Payment submitted with the July 1990 DIC application references both myeloma and non-Hodgkins lymphoma.  

To the extent that Points 1 and 2 refer to the April 1985 burial benefits application, the Board disagrees with the implication that the Claimant filed a claim for benefits in 1985.  As described above, the April 1985 burial benefits application was submitted by a funeral home and signed by a secretary, neither of which was a recognized representative at the time of the filing.  Therefore, the April 1985 burial benefits application was not submitted by the Appellant or by an accredited representative on her behalf.  

Point 3 states that the Appellant "has at all times remained a certified Nehmer member."  This point is more fully articulated on page three of the August 2020 brief, where it is explained that Nehmer I includes "all current or former service members (or their survivors) who are eligible to apply for benefits based on dioxin exposure or who have already applied and been denied claims for benefits based on dioxin exposure."  Nehmer I, 712 F. Supp. at 1409.  

Even taken as true, the Board disagrees with the implication that every Nehmer class member is entitled to relief or that all Nehmer class members are entitled to the same relief.  Importantly, the Nehmer Class Certification states: 

In determining whether to certify a class, this Court must only determine whether plaintiffs have satisfied the prerequisites of Rule 23.  As the United States Supreme Court stated ..., "the question [for class certification] is not whether the ... plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met."

Nehmer v. United States Veterans Admin., 118 F.R.D. 113, 116 (N.D. Cal. 1987) (internal citation omitted).  In other words, class certification does not guarantee ultimate relief.  

The focus, then, should be on what benefits the Appellant is entitled to in light of the final court order and the resulting regulations.  The Nehmer Final Order applied to claims "voided by the Court's Order of May 3, 1989" and "all similar claims filed subsequent to the Court's May 3, 1989 Order ...."  Nehmer v. United States Veterans Admin., Civil Action No. CV-86-6160 (TEH), 1991 U.S. Dist. LEXIS 22110, at *3 (N.D. Cal. May 17, 1991).  There is no indication that both groups of claims are entitled to the same relief.  The regulations promulgating Nehmer provide different relief based on when the original DIC claim was voided.  See 38 C.F.R. § 3.816(c)(d).  As described, the Appellant did not file her first DIC claim until July 1990, and therefore could not have had a DIC claim voided between September 25, 1985, and May 3, 1989.  To the extent that the Appellant's representative is arguing that the Appellant is entitled to the same relief as class members who had claims voided between that date range, the Board disagrees.  

Points 5 and 6 explain that Nehmer I "voided the original denial of s/c death" and "requires readjudication of the original [DIC] claim if myeloma is ever added as a presumptive condition."  The Board disagrees with the implication there was an adjudication of DIC in conjunction with the April 1985 burial benefits application.  As explained, the first claim for DIC benefits was submitted in July 1990 and adjudicated for the first time in March 1991.  It follows that there is no pre-1990 DIC decision to be readjudicated.    

Point 7 states that "Nehmer I mandates an effective date of DIC whenever filed as the date the original [DIC] claim was filed, if myeloma is a 'grantable' DIC condition."  The Board disagrees.  The effect of Nehmer I was to invalidate part of § 3.311a and to void decisions adjudicated under that regulation.  The case does not address effective dates that will be assigned to readjudicated claims.  It also does not address the readjudication or effective dates of decisions denied prior to the implementation of § 3.311a.

The Appellant's representative then identifies several "Red Herring" points.  According to the Appellant's representative, these "seem like important considerations for the Nehmer review required, although they actually have little to no bearing on the ultimate outcome ...."  The Board shall address "Red Herring" points 1, 2, 7, and 8.  

In "Red Herring #1" point, the Appellant's representative "concedes [Appellant's] original [DIC] claim filed in April 1985 ... was not a formal claim for DIC, death pension, accrued benefits, or any other benefit other than burial reimbursement."  The Board disagrees with the assertion that the April 1985 burial benefits application was a claim filed by the Appellant, as previously explained.  

"Red Herring #2" point reads as follows: 

[Appellant] further concedes that the VA took [the Appellant's] original [DIC] claim as an additional informal claim for DIC, correctly provided notice to [the Appellant] of the need to complete a formal claim for DIC within a year of death to ensure the optimal effective date according to the generally applicable laws and regulations regarding DIC, and indicated to Claimant that VA Form 21-534 was enclosed with such notice.  Claimant's informal claim for DIC remained pending until April 1986, when no formal claim was received by VA and the claim died.  

The Board takes this point as a concession that the Appellant received a copy of the May 8, 1985 letter informing her that she had one year from the Veteran's death to file a DIC application.

The Board disagrees with four implications of the "Red Herring #2" point, all of which have been previously described.  First, the Board disagrees with the implication that the funeral home's April 1985 burial benefits application is a claim submitted by the Appellant.  Second, the Board disagrees with the implication that the burial benefits application can be accepted as a claim for DIC.  Third, the Board disagrees with the implication that VA adjudicated a DIC claim in 1985.  Fourth, the Board disagrees with the implication that VA adjudicated an informal claim for DIC in 1985.

In "Red Herring #8" point, as discussed above, the Appellant's representative states that "Williams v. Principi, 310 F.3d 1374 [(Fed. Cir. 2002)] is a published decision but it cannot be facially precedential.  It is bad law based on false actual premises and incomplete legal analysis."  

The Appellant's representative points to no authority for the Board or Court to disregard precedential cases of a reviewing tribunal.  Since the Board does not rely on Williams for its holding in this decision, it will not address the August 2020 arguments in this regard.  Rather, Williams is distinguishable, in that the Williams claimant filed a DIC claim that was denied prior to September 25, 1985, and later filed a DIC claim that was granted.  By contrast, the Appellant's first claim for DIC was filed in 1990 and that first claim was granted.  

The Appellant's representative next argues that the April 1985 claim is subject to Nehmer because the Appellant is a class member.  As explained, however, the Appellant did not file her initial DIC claim until 1990.  The Appellant's claim is therefore not entitled to the same effective date provisions as those provided for claims voided between September 25, 1985, and May 3, 1989.  See 38 C.F.R. § 3.816(d).  

The Appellant's representative then goes on to distinguish the Appellant's claim from Williams and argue that it was decided on erroneous legal principles.  As noted, the Board is not relying on Williams to deny the Appellant's claim.  

The Appellant's representative then states: "It should be conceded by the Board that the original April 1985 claim is subject to Nehmer and is and has been ripe for readjudication ever since myeloma became a presumptive condition."  He goes on to explain that the Appellant's April 1985 claim "fits squarely within the definition of covered claims as detailed in the original Nehmer I order."  As explained, the Board disagrees with the implication that the Appellant filed a claim in April 1985, that a claim for DIC was filed in April 1985, or that a claim for DIC was adjudicated in May 1985.  

However, even assuming that DIC was adjudicated in May 1985, that decision would not be subject to Nehmer because it would have been adjudicated prior to the September 25, 1985 effective date of § 3.311a.  As explained, Nehmer I "void[ed] all benefit denials made under section 311a(d) ...."  712 F. Supp. at 1423.  Even assuming that a DIC claim was filed in April 1985, it cannot be said that the DIC claim was adjudicated under § 3.311a in May 1985, because the adjudication was four months prior to effective date of § 3.311a.  

Subsequent Nehmer decisions and orders are consistent with a finding that Nehmer I only voids decisions adjudicated under § 3.311a, effective September 25, 1985.  Nehmer II describes a May 1991 Final Stipulation and Order that required "VA to reopen and readjudicate previously denied claims that were voided by the Court's May 1989 [Nehmer I] order if and when the VA issues new Agent Orange regulations service-connecting diseases other than chloracne."  32 F. Supp. 2d at 1177.  Nehmer II did not expand Nehmer I to void claims adjudicated prior to the September 25, 1985 effective date of § 3.311a.  

The Nehmer Final Order also does not expand Nehmer I to void claims adjudicated prior to September 25, 1985.  Paragraph 3 instructs VA to "readjudicate all claims for any such disease which were voided by the Court's Order of May 3, 1989, as well as adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order" after VA issues any final rule linking such diseases to herbicide agent exposure.  Nehmer Final Order, 1991 U.S. Dist. LEXIS 22110, *23.  Paragraph 5 provides effective dates for "any denials of claims which were voided as a result of the Court's May 3, 1989 Order ... assuming the basis upon which compensation is granted after readjudication is the same basis upon which the original claim was filed ...."  Id. at *4.  Also under Paragraph 5:

For any claim for any such disease which was not filed until after May 3, 1989, the effective date for beginning disability compensation or DIC will be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later.

Id.  at *5.  

In short, Nehmer I voided claims adjudicated under § 3.311a, and therefore does not apply to any claims adjudicated prior to the September 25, 1985 effective date of that statute.  Neither Nehmer II nor the Nehmer Final Order expanded the scope of Nehmer I.  And Nehmer II was affirmed by the Ninth Circuit in Nehmer III.  See 284 F.3d at 1160.  It follows that the effective date provisions of Nehmer only apply to claims adjudicated from September 25, 1985.  Even assuming that the original Nehmer class included parties whose claims were adjudicated prior to this date, being included in a class for certification purposes does not guarantee relief.  See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) ("[T]he question [for class certification] is not whether the ... plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.").  This appears to be what has happened to the Appellant in the present case.  

The Board notes that § 3.816(d) mirrors the language of the Nehmer decisions cited above.  Section 3.816(d)(1) applies "[i]f VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989," in which case the effective date is the later of the claim date or the date of death.  Section 3.816(d)(2) applies to DIC claims "pending before VA on May 3, 1989, or ... received by VA between that date and the effective date of" implementing regulations.  These provisions mirror Paragraph 5 of the Nehmer Final Order in all significant respects.  It follows that Nehmer and § 3.816(d) are consistent.  

The Appellant's representative then states that "[t]he original [DIC] claim turned entirely on whether myeloma could be recognized as service-connected or not."  The basis for this argument is that "[m]yeloma was the only condition listed on the death certificate" and "[t]he denial for the higher monetary reimbursement stated expressly that it was due to 'no evidence to show that the Veteran's death as due to a service-connected condition."  The Board disagrees with the implication that there was an adjudication of DIC in 1985, for reasons already described.  

The Appellant's representative then explains that "it is indisputable that the District Court, in 1989, voided the original [DIC] claim of April 1985."  The Board disagrees, in that it has found that there was no DIC claim to void prior to July 1990.  Further, as described, Nehmer I only voided claims adjudicated under § 3.311a, which has an effective date of September 25, 1985.  Nehmer I therefore cannot apply to claims adjudicated prior to that date.  Subsequent Nehmer decisions are consistent.  

The Appellant's representative then argues that the 1990 DIC claim based on non-Hodgkins lymphoma is a "similarly adjudicated claim" relative to the April 1985 DIC claim based on myeloma.  Citing Nehmer III, the Appellant's representative emphasizes that such claims should not be distinguished from "readjudicated claims."  This argument appears to refer to a situation where April 1985 and 1990 DIC claims are based on non-Hodgkins lymphoma as a underlying disorder but the April 1985 DIC claim lists only myeloma and the 1990 DIC claim lists non-Hodgkins lymphoma.  Even taken as true, this argument is inapplicable where, as here, there was no DIC claim or DIC adjudication prior to September 25, 1985.  

The Appellant's representative then addresses several problems with the VBA Nehmer Training Guide that conflict with Footnote 1 of the Nehmer Final Order.  Even taken as true, this argument is inapplicable where, as here, the Board's analysis is in no way dependent on VBA training manuals.  

The Appellant's representative then provides the following discussion, which appears to be based on an example from the VBA Nehmer Training Guide:

If a Veteran applied for service connect[ion] for only a single condition, but his medical records clearly noted 99 other diagnoses  the rater was supposed to, per policy, adjudicate the one issue and code the other 99, for a total of 100 disabilities included in the rating decision.  If one of those other 99 conditions ever becomes a true Nehmer condition, the VA appears to already concede that no formal claim filing is required to initiate Nehmer readjudication, and the effective date is the original filing for the first condition.  That's true despite no evidence that the veteran so much as intended to ever apply for such condition or any indication it was in any way related to service.

The Appellant's representative then describes how there is "much more obvious similarity" between a claim for burial benefits and a claim for DIC.  The implication seems to be that there is greater overlap between DIC and burial benefits than two disorders affecting different body systems, where only one disorder is presumptively linked to herbicide agent exposure.  

The Board disagrees with three implications of this argument, all of which have been described above.  First, that VA would award service connection for a disorder for which a claim is not filed.  Second, that VA would award service connection or DIC prior to the filing of a claim for compensation benefits where the claim was not filed within a year of the Veteran's discharge or death.  Regarding these first two points, to the extent that a VBA training manual suggests otherwise, the Board is not bound by that instruction.  Third, the Board disagrees with the implication that a burial benefits claim implies a claim for DIC where, as here, the burial benefits application contains no indication that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  

The Appellant's representative then quotes the Nehmer Final Order for the premise that "the phrase 'assuming the basis upon which compensation is granted ... is the same basis upon which the original claim was filed,' is speaking about these death benefit situations."  Brief at 7 (quoting 1991 U.S. Dist. LEXIS 22110 at *4).  This quotation is taken from Paragraph 5 of the Nehmer Final Order.    

The implication appears to be that if an April 1985 DIC claim based on myeloma was submitted, the Appellant does not have to submit a 1990 DIC claim based on the same disorder to be entitled to an earlier effective date under Nehmer.  Rather, the 1990 DIC claim could be based on non-Hodgkins lymphoma, even though the 1985 adjudication was based on myeloma.  Even taken as true, this argument is inapplicable where before 1990 there was no DIC claim filed and there was no DIC adjudication.  It cannot be said that a readjudication is required of a claim that was granted after the initial July 1990 claim was granted in March 1991.  

To the extent that the Appellant's attorney argues that Paragraph 5 of the Nehmer Final Order can be read to mean that a burial benefit claim and a DIC claim share the same underlying basis, the Board disagrees.  This is because Paragraph 5 specifically references service connection but never references burial benefits.  The same is true of the paragraphs, regulations, and other Nehmer decisions that are indirectly referenced in Paragraph 5.  

Paragraph 5 of the Nehmer Final Order is quoted in significant part above and specifically references service connection claims when providing instruction for when the Secretary issues "a proposed rule providing service connection in certain circumstances" and the "effective date for disability compensation for [DIC]" to be assigned in such circumstances.  Nehmer Final Order, 1991 U.S. Dist. LEXIS 22110, at *45.  

Paragraph 5 also references Paragraph 3, which references service connection claims and Nehmer I.  Specifically, Paragraph 3 addresses the readjudication of "all claims for any such disease which were voided by the [Nehmer I] Order" and "all similar claims filed subsequent to the [Nehmer I] Order" following the issuance of any final rule "service-connect[ing], based on dioxin exposure," any diseases to be named in the future.  Nehmer Final Order, 1991 U.S. Dist. LEXIS 22110, at *3.  Further, Nehmer I refers to § 3.311a when "void[ing] all benefit denials made under section 311a(d) ...."  712 F. Supp. at 1423.  And § 3.311a is directed towards service connection for diseases associated with herbicide agent exposure.   

Paragraph 4 describes notification requirements to be performed "[p]rior to conducting the adjudications referred to in [P]aragraph 3 ...."  Nehmer Final Order, 1991 U.S. Dist. LEXIS 22110, at *3.  As described, Paragraph 3 specifically references service connection claims.  

Taken together, Paragraph 5 of the Nehmer Final Order specifically references service connection, compensation benefits, DIC, Paragraph 3, and Paragraph 4.  Paragraphs 3 and 4 directly or indirectly reference service connection, Nehmer I, and/or § 3.311a.  Nehmer I and § 3.311a also specifically reference service connection.  By contrast, burial benefits are never specifically referenced in the Nehmer Final Order, Nehmer I, or § 3.311a.  Burial benefits are also never specifically referenced in Nehmer II, Nehmer III, or § 3.816.  As the Nehmer litigation as a whole, § 3.311a, and § 3.816 directly reference compensation benefits but never directly reference burial benefits, the Board finds that Paragraph 5 of the Nehmer Final Order cannot be read to mean that a burial benefit claim and a DIC claim share "the same basis."  

The Appellant's representative then states that the Appellant "did not have to submit a DIC claim that was voided by the 1989 Order in order to receive an earlier effective date, even for a DIC claim that is submitted after May 1989."  Further, "[t]he initial effective date awarded for DIC was required to be readjudicated at the exact moment the regulations added myeloma to the list of presumptive conditions in 1994."  

The implication appears to be that since under Paragraph 5 of the Nehmer Final Order the April 1985 burial benefits claim is adjudicated according to the same bases as a DIC claim, the RO should have readjudicated the April 1985 burial benefits claim as a DIC claim without the Appellant needing to file a new claim form.  For reasons described above, the Board disagrees with the implication that a burial benefits claim and a DIC claim share the same basis.  

To the extent that the Appellant's representative is arguing that there was a May 1985 adjudication of DIC based on myeloma that should have been readjudicated without a subsequent filing, the Board disagrees with the implication that there was an adjudication of DIC in May 1985, as described.  Even assuming that there was a DIC adjudication in May 1985, that decision would have been decided before the September 25, 1985 effective date of § 3.311a and would not have been subject to Nehmer I and the subsequent Nehmer decisions, as also described.  

The Appellant's representative then explains that "[w]holly unrelated to Nehmer litigation, it has always been the case that once DIC is granted, eligibility for service-connected burial benefits is strongly invited" and that burial benefits are granted automatically after DIC benefits are granted.  The Appellant's representative then cautions that "[c]ase law discussing the interplay between informal claims for DIC, and DIC claims and burial benefits, are not applicable to this case because Claimant gets to take advantage of all of the aforementioned and special Nehmer considerations, including the special DIC effective date provision of Para[graph] 5 which can be based on similarly voided claims."  

The Board reiterates that neither the Appellant nor a VA-approved representative ever filed a claim for burial benefits or DIC.  It therefore cannot be said that the May 1985 adjudication of burial benefits based on the funeral home's April 1985 burial benefits application was voided by Nehmer I or required readjudication.  

Paragraph 5 does direct the assignment of effective dates where "the basis upon which compensation is granted after readjudication is the same basis upon which the original claim was filed ...."  Nehmer Final Order, 1991 U.S. Dist. LEXIS 22110, at *4.  The Board finds that this provision refers to the example described above where: 1) a DIC claim is denied between September 25, 1985, and May 3, 1989, on the basis that there no nexus between myeloma and herbicide agent exposure; and 2) a post-May 3, 1989 DIC claim is filed for non-Hodgkin's lymphoma.  However, a burial benefits claim is distinct from a compensation or DIC claim, as described above.  It follows that a compensation or DIC claim that is filed years after a burial benefits claim is not readjudicated on "the same basis upon which the original [burial benefits] claim was filed."  This is particularly true where the key Nehmer decisions and the underlying regulation make no specific reference to burial benefits, as also described above.   

It therefore cannot be said that a burial benefits claim shares the same underlying basis as a DIC claim.  This is consistent with binding Court precedent holding that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  

The April 1985 burial benefits claim makes no reference to the Veteran's death being related to service.  For these reasons, the Board finds that neither Paragraph 5 of the Nehmer Final Order nor 38 C.F.R. § 3.816(d) provides a basis for granting an effective date prior to August 1, 1990, for DIC, based on the funeral home's claim for burial benefits that was denied prior to September 25, 1985.  

The Appellant's representative than objects that "VA has never provided any Nehmer notice to the [Appellant] related to any of her claims, past or present."  However, such notice cannot be required where the Appellant's 1990 claim was her first such claim and that claim was granted.  As a result, there was no decision to be voided.  It follows that readjudication and notice were not required.  

The Appellant's representative closes by objecting that "VA has never provided any Nehmer notice to the Veteran related to any of her claims" and that the June 2020 SOC "speaks nothing of myeloma" or "the original s/c death claim."  Rather, the June 2020 SOC addressed "generally applicable rules, and not special Nehmer rules, for earlier effective date for DIC claims."  

A Nehmer discussion was not required, in that Nehmer is inapplicable and would have made no impact on the disposition of the appeal.  As described, the Board disagrees that the funeral home's April 1985 application for burial benefits is the original claim for DIC, so there was no need to address myeloma as part of a DIC claim filed prior to 1990.  The Board also disagrees with the implication that there was an adjudication of DIC prior to March 1991, as also described.  Even assuming that a May 1985 letter was an adjudication of DIC, the adjudication occurred prior to the September 25, 1985 effective date of § 3.311a, and is therefore outside the scope of Nehmer I, which only voided claims adjudicated under § 3.311a.  There was therefore no error in the RO not addressing Nehmer provisions in the June 2020 SOC.  

In summary, the arguments contained in the August 2020 brief do not disturb the Board's decision to deny entitlement to an effective date prior to August 1, 1990, for DIC.  The Appellant did not file a claim for DIC prior to 1990 and the RO did not adjudicate such a DIC claim prior to 1990.  There was therefore no decision to be voided under Nehmer and the provisions of 38 C.F.R. § 3.816(d)(1) are inapplicable.  

July 2021 Hearing Testimony

In denying an effective date prior to August 1, 1990, for DIC, the Board has also considered the arguments raised by the Appellant's representative in the July 2021 hearing testimony.  

The Appellant's representative opens by stating that the Appellant is a Nehmer class member because "she had filed a death benefit case ... claim prior to Nehmer ...."  To the extent that the Appellant's representative is arguing that a DIC claim was filed prior to July 1990, the Board disagrees, for reasons articulated above.  To the extent that the Appellant's representative is referring to the Appellant's November 1985 headstone reimbursement application, the Board disagrees with the implication that this includes or raises a claim for DIC, for reasons also articulated above.  

The Appellant's representative then states that under the Nehmer Final Order burial benefits and DIC benefits "are the same case, or at least they are a similar case in the way that the stipulation addresses them."  This is because "when you apply for burial benefits, ... you have to prove ... death by a service-connected disability.  And when you're applying for DIC you have to prove death by a service-connected disability."  Further, under current VA practice when a party files for DIC "they're going to automatically look back and see should you get burial benefits" because "VA admits that they're essentially the same case if they now intertwine them, even without someone having to apply for the death burial benefit separately."  

The Board disagrees that the funeral home's April 1985 burial benefits claim is "the same case, or at least [a] similar case" to the Appellant's July 1990 DIC claim.  Importantly, the funeral home never had standing to receive DIC benefits.  The funeral home was never a recognized representative and the Appellant did not sign the April 1985 burial benefits claim as a Claimant.  The funeral home's claim involves benefits for a different party than the July 1990 DIC claim, and the funeral home's claim could never have resulted in an award for DIC for the funeral home.  Even assuming that myeloma and non-Hodgkins lymphoma constitute the same disorder causing the Veteran's death, it cannot be said that the April 1985 and July 1990 claims are the "same" or "similar."   

The Board further disagrees with the premise that "when you apply for burial benefits, ... you have to prove ... death by a service-connected disability."  Burial benefits are available for death by nonservice-connected disorders.  It therefore does not follow that a claim for burial benefits lacking reference to the nature of the Veteran's death automatically carries an implied claim for DIC.  Further, simply because a claim for DIC carries an implied claim for burial benefits, it does not necessarily follow that all claims for burial benefits automatically carry a claim for DIC.  The Court has held that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  Further, as also described, while the Nehmer decisions and § 3.311a (the regulation underlying the Nehmer litigation) all reference service connection and/or some form of compensation benefits, none specifically references burial benefits.  

The Appellant's representative then argues that a Nehmer readjudication is required, as the RO previously adjudicated a DIC claim in 1985.  As discussed, the Board finds that there was no DIC adjudication in 1985.  Further, even assuming that the May 1985 letters constitute an adjudication of DIC, the adjudicatory date precedes September 25, 1985, meaning that that the effective date provisions of Nehmer and § 3.816(d) do not apply.  

The Appellant's representative then argues that the April 1985 burial benefits application carries an implied claim of DIC.  The rationale is that if a veteran who was exposed to herbicide agents during service files a claim of service connection for a knee disorder and the claims file indicates that the veteran has diabetes, "VA picks it up because of a policy and the footnote in the stipulation that says that if ... there's a similar claim made, then they're going to post-date it back ... to that claim."  The Appellant's representative further notes that death benefits claims are "more closely associated than the other kinds of Nehmer earlier effective dates that are awarded."  

To the extent that the Appellant's representative is arguing that VA would accept a claim for benefits without an application referencing the specific benefit sought, the Board disagrees, for reasons discussed previously.  However, even taken as true, it does not automatically follow that an unaccredited funeral home's claim for burial benefits making no referenced to how the Veteran died implies a DIC claim for another party, for reasons also discussed previously.  

Further, the Board is bound by Court precedent holding that an application for burial benefits cannot be construed as an informal claim for DIC benefits unless the application indicates that the Veteran's death was due to service.  See Mitscher v. West, 13 Vet. App. 123, 127 (1999); Shields v. Brown, 8 Vet. App. 346, 349 (1995).  In addition, as also described, while all Nehmer decisions and § 3.311a (the regulation underlying the Nehmer litigation) all specifically reference service connection and/or some form of compensation benefits, none specifically references burial benefits.

The Appellant's representative then argues that the Federal Circuit decision Williams is legally inaccurate and entitled to no precedential values.  As noted, the Board's decision does not rely on Williams, and that case is distinguishable.  

The Appellant's representative then explains that under Nehmer "you don't look at what people apply for.  You look at what the heart of what was adjudicated.  And what was adjudicated here was did [the Veteran] pass as a result of a service-connected condition."  The Appellant's representative appears to be arguing that a DIC claim based on myeloma and denied in May 1985 is the same as a DIC claim based on non-Hopkins lymphoma that was filed in July 1990.  Even taken as true, that does not mean that Appellant would be entitled to an earlier effective date where the May 1985 decision was denied prior to September 25, 1985, and therefore outside of the scope of the regulations implementing Nehmer.  38 C.F.R. § 3.816(d)(1).  

The Board disagrees with the implication that a DIC claim was adjudicated in 1985, for reasons described previously.  The Board also disagrees with the implication that a burial benefits claim not referencing that the underlying party's death was related to service can be interpreted as a claim for DIC, for reasons also described previously.  The Board also disagrees with the implication that Nehmer contemplates a later-filed DIC claim being adjudicated on the same basis as an earlier-filed burial benefits claim, for reasons also described.  

During the hearing, the undersigned pointed out that under Nehmer a claim for burial benefits may not apply unless the claim "indicates that the burial benefits are due to a service-connected disability ...."  The Appellant's representative replied "that Nehmer says you can't do that."  The rationale appears to be that the Appellant should not be required to raise a claim of DIC in association with the April 1985 burial benefits application because at that time there was no basis for presumptive service connection for myeloma or non-Hodgkins lymphoma.  The Board disagrees, in that it has already found that the April 1985 burial benefits application is not a claim submitted by the Appellant.  As also discussed, Nehmer and § 3.816(d) indicate that a claim for DIC due to non-Hodgkins lymphoma was required even when there were no regulations presumptively linking this disorder to herbicide agent exposure.  

Finally, during the hearing, the undersigned asked the Appellant if "[w]hen the claim for burial benefits ... was submitted, [she was] thinking burial benefits were warranted because the death was related to the Veteran's service[.]"  She replied, "Yes."  In support of this point, the Appellant's representative points to her participation in a lawsuit filed against manufacturers of Agent Orange that was filed in the Eastern District of New York.  

Unfortunately, intent and a filing are required for an informal claim of benefits.  38 C.F.R. § 3.155 (1985).  Intent alone is insufficient.  The first indication of an intent for DIC benefits that is coupled with an actual filing is the July 1990 claim.  As described, there is no intent to seek DIC benefits in the funeral home's April 1985 burial benefits claim or in the Appellant's 1985 headstone reimbursement claim.  Neither application references that the Veteran's death was related to service.  For these reasons, when considered in light of the evidence as a whole, the Appellant's July 2021 hearing testimony about intent is insufficient to support an effective date prior to August 1, 1990, for DIC.  

In summary, in considering the July 2021 hearing testimony as a whole, the Board finds that this testimony does not support an earlier effective date for DIC.  

October 2021 Brief

In denying an effective date prior to August 1, 1990, the Board has considered the arguments made by the Appellant's representative in the October 2021 brief.  

The Appellant's representative argues that in promulgating § 3.816(d), VA erred by limiting effective date provisions to individuals alleging presumptive conditions.  Per the guidance cited by the Appellant's representative, VA "define[s] a 'Nehmer class member' as 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."  60 Fed. Reg. 4132 (2003).  

The Appellant's representative immediately goes on to say that the Appellant "meets even the VA's limited definition of being a Nehmer class member."  As the Appellant's representative does not dispute that the Appellant meets this class, the Board shall not address the argument regarding whether § 3.816(d) was construed too narrowly.  

The Appellant's representative then argues that "regulations like 38 C.F.R. § 3.816 are generally not in line with the [Nehmer] Court's orders."  One stated reason is that "the 1985 date that is referenced throughout the regulations as the start of the Nehmer review period has no lawful basis."  

The Court disagrees with the argument that the September 25, 1985 date "has no lawful basis."  As explained, the Nehmer litigation was brought as a challenge to § 3.311a.  The effective date of that regulation is September 25, 1985.  50 Fed. Reg. 34452 (1985).  It logically follows that any decisions adjudicated prior to the effective date of § 3.311a were not adjudicated under that statute and would not be subject to a lawsuit seeking to invalidate § 3.311a.  Therefore, there is a lawful basis for the date of September 25, 1985.  

The Appellant's representative then argues that the Appellant "clearly received a decision in May 1985 that the condition leader to her husband's death was not service-connected."  The Board disagrees with this characterization of the May 1985 letters sent to the Appellant, for reasons already discussed.  

Finally, the Appellant's representative argues that "the allegation that a [September 25,] 1985 date was the start of the Nehmer review period was expressly rejected" in Nehmer III.  This argument is based on the following quote: "We reject VA's attempt to read the stipulation as distinguishing between those claimants who filed for benefits before valid regulations were promulgated, and those who filed after."  Nehmer III, 284 F.3d 1158, 1161 (9th Cir. 2002).  

The Board disagrees with the assertion that Nehmer III addressed, much less decided, whether the Nehmer review period preceded September 25, 1985.  In Nehmer III, the Ninth Circuit opens by describing the background of the Nehmer litigation and the May 1991 Final Stipulation and Order.  284 F.3d at 115860.  Nehmer III then describes how in 1994 VA issued a regulation denying a link between prostate cancer and herbicide agents but reversed that position in 1996.  Id. at 1161.  It then characterizes the appeal as follows: 

VA argues that it is not required to pay retroactive prostate cancer benefits (accruing, in most cases, back to the date of the veteran's first claim for such benefits) to any veteran suffering from prostate cancer whose earlier claim was denied under the valid 1994 regulations.  The district court, having overseen the case since its inception and relying on the plain language of the [May 1991 Final Stipulation and Order], disagreed.

Id.  In affirming the district court, the Ninth Circuit stated the following:

We reject VA's attempt to read the stipulation as distinguishing between those claimants who filed for benefits before valid regulations were promulgated, and those who filed after.  The plain language and remedial purpose of the consent decree indicate that VA agreed to pay retroactive benefits to all claimants whose claims were filed after 1989, if and when the disease from which they suffer is service connected under the Agent Orange Act.

Id. at 116162.  

In considering the "We reject ..." sentence in the context of the subsequent "The plain language ..." sentence, it is clear that the "We reject ..." sentence quoted by the Appellant's representative does not refer to claims filed prior to September 25, 1985.  Rather, the "The plain language ..." sentence specifically refers to claims "filed after 1989."  The "The plain language ..." sentences does not reference claims filed prior to September 25, 1985.  Neither does any other sentence of the Nehmer III decision.  Rather, the underlying issue in Nehmer III had to do with claims of service connection for prostate cancer that were filed after 1989 but denied under a regulation that became effective in 1994.  For these reasons, the Board finds that the "We reject ..." sentence quoted by the Appellant's representative does not reject a start date of September 25, 1985, for the Nehmer review period.  

To conclude that Nehmer III supports a review period starting earlier than September 25, 1985, would also be inconsistent with the Nehmer litigation as a whole.  Nehmer I invalidated § 3.311a and voided benefit decisions made under that regulation, the effective date of which was September 25, 1985.  It logically follows that any decisions adjudicated prior to the effective date of § 3.311a would not have decided under § 3.311a and could not have been voided under the Nehmer I invalidation of § 3.311a.  Nehmer II struck down two additional requirements VA had imposed before readjudicating claims originally denied under § 3.311a.  But Nehmer II never addresses decisions adjudicated prior to September 25, 1985, and never suggests that any decision denied prior to that date requires readjudication.  Nehmer III affirms the Nehmer II interpretation of the May 1991 Final Stipulation and Order, also without addressing whether decisions denied prior to September 25, 1985, require readjudication.  The § 3.311a effective date of September 25, 1985, was incorporated into § 3.816.  

Taken together, the effective date of § 3.311a was a part of Nehmer I and never addressed or disturbed in any subsequent decision.  It is therefore legally incorrect to conclude that Nehmer III rejects the date of September 25, 1985, as the beginning of the Nehmer review period.  

The Appellant's representative concludes that VA and the Federal Circuit "willfully and directly ignor[e] the Nehmer Court....  As a result, neither 38 C.F.R. § 3.816 nor any Federal Circuit decisions alleging otherwise are binding and enforceable against" the Appellant.  As described, the Board disagrees with the argument that § 3.816 is inconsistent with Nehmer.  However, even if the Board agreed, it would nevertheless be bound by § 3.816 and the decisions of its reviewing courts.  The Appellant's representative has provided no reason for the Board to do otherwise.  

In conclusion, the Board finds that the evidence does not support entitlement to an effective date prior to August 1, 1990, for the award of DIC.  Neither the evidence of record, nor the Appellant's testimony, nor her representative's arguments support a finding that a claim for DIC was submitted by the Appellant prior to July 1990.  The Board further finds that there was no implied DIC claim or DIC adjudication prior to July 1990.  Even assuming that one of the May 1985 letters was an adjudication of DIC, it precedes the September 25, 1985 effective date of § 3.311a and therefore is outside of the scope of the Nehmer order voiding that regulation and requiring readjudication of all claims denied under § 3.311a.  For these reasons, the Appellant's claim for an effective date prior to August 1, 1990, for DIC is denied.  

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cannon, Brian

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.