Citation Nr: A21019853
Decision Date: 12/14/21	Archive Date: 12/14/21

DOCKET NO. 200504-81813
DATE:       December 14, 2021

ORDER

Entitlement to an effective date prior to August 30, 2011, for the grant of service connection for the cause of the Veteran's death is denied.

FINDINGS OF FACT

1. The appellant filed a petition to reopen service connection for the cause of the Veteran's death on August 30, 2011.

2. In a February 2018 Board decision, the Board found that a June 1997 rating decision, which had denied service connection for the cause of the Veteran's death was final. The Board also found that, since the June 1997 rating decision, new and material evidence had been received to reopen the appellant's claim; and ultimately granted service connection for the cause of the Veteran's death. The appellant did not appeal the Board's decision, nor has she filed a proper motion for clear and unmistakable error in the Board's February 2018 decision.

CONCLUSION OF LAW

The criteria for an effective date prior to August 30, 2011, for the grant of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 5107, 5110, 7104; 38 C.F.R. §§ 3.400, 3.156 (c)(1)(2), 20.1100.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active duty service from September 1958 to September 1978. He died in November 1990. The appellant is the Veteran's surviving spouse. 

The rating decision on appeal was issued in July 2018. The Agency of Original Jurisdiction (AOJ) therein implemented a February 2018 Board of Veterans' Appeals (Board) decision, which determined that new and material evidence had been received to reopen the appellant's service connection claim for the cause of the Veteran's death and granted the claim on the merits. The Board decision had also determined that the claim was most previously denied in a final 1997 rating decision. The AOJ assigned an effective date of August 30, 2011. The appellant timely appealed the effective date assigned.

The AOJ then issued a March 2020 requisite Statement of the Case (SOC). On her May 2020 VA Form 10182, the appellant checked off the box that she wished to opt into the Modernized System of Review by withdrawing out of the Legacy System of Appeals. Thus, the appeal now is reviewed under the Modernized System. See 38 C.F.R. § 19.2 (d)(2). The appellant selected the Board's Direct Review Docket. As such, only the evidence available to the AOJ at the time of the March 2020 SOC, and no other, will be considered. See 38 C.F.R. §§ 20.202(b)(1), (c)(1), 20.301.

This matter was previously before the Board in July 2020. At that time, the Board denied the appellant's claim for an effective date prior to August 30, 2011, for the grant of service connection for the Veteran's cause of death. Thereafter, the appellant appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted the parties' Joint Motion for Remand (JMR), which vacated the Board's decision denying this claim and remanded the case for further consideration.

The appellant contends that she is entitled to an effective date earlier than August 30, 2011, for the grant of service connection for the cause of the Veteran's death. The appellant's representative has submitted argument that, pursuant to 38 C.F.R. § 3.156(c), military personnel records received in January 2017 were relevant to the appellant's original claim filed a few months after the Veteran's death in November 1990 and resulted in the original claim remaining pending. See, e.g., May 2020 VA-Form 10182. 

The question for the Board is whether the appellant is entitled to an effective date earlier than August 30, 2011, for the grant of service connection for the cause of the Veteran's death. The Board concludes that the appellant is not entitled to an effective date earlier than August 30, 2011. 

Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. § 3.400(r).

VA regulation 38 C.F.R. § 3.156(c) (1)(2) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; 

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156 (c)(1)(2).

By way of history, the AOJ originally denied the appellant's service connection claim for the cause of the Veteran's death in November 1991, based on an April 1991 claim. The claim was denied again in June 1994 and June 1997. The premise of the denials was that the Veteran did not die from a disease that was presumptively related to his exposure to herbicides in service, as the type of brain tumor he died from was not classified as a soft tissue sarcoma. See, e.g., June 1997 rating decision.

The appellant filed her most recent petition to reopen service connection for the cause of the Veteran's death on August 30, 2011. The AOJ again denied the appellant's claim in April 2013; but the appellant appealed the denial to the Board. Military personnel records were added to the file in January 2017, which the appellant argues clarifies the extent of herbicide exposure the Veteran had in service. See, e.g., May 2019 VA-Form 21-0958.

In February 2018, the Board determined that the June 1997 rating decision, which denied service connection for the Veteran's death was final. The Board also found that new and material evidence had been received since the last final denial of the claim and reopened the claim on the merits; and ultimately granted service connection for the cause of the Veteran's death. 

Of utmost importance in the current matter, the Board notes that the finality of the February 2018 Board decision has not been challenged, including by way of motion based on clear and unmistakable error of a Board decision (under 38 U.S.C. § 7111). The appellant was notified of the Board's decision along with her appellate rights but did not file an appeal. The February 2018 Board decision is final, and became final upon being issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100.

To the extent that the appellant argues that her original claim in 1991 remained pending based on relevant military personnel records that were added to the record in January 2017, the Board in its February 2018 decision did not find any exception to the rule that new and material evidence needed to be submitted to reopen the claim. The Board determined that the June 1997 rating decision was final and made an analysis and reopened the claim based on the receipt of new and material evidence. 

No correspondence was received from the appellant after the June 1997 rating decision indicating her desire to reopen her service connection claim for the cause of the Veteran's death prior to the August 30, 2011, application to reopen; and the appellant does not contend otherwise.

Based on a careful review of the record, the Board finds that there are no grounds to support the assignment of an effective date earlier than August 30, 2011, for the grant of service connection for the cause of the Veteran's death. The Board acknowledges the arguments set forth by the appellant. Under the law, however, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). As such, the AOJ assigned the earliest possible effective date for its grant of the reopened claim, which, based on the procedural history as outlined in detail above, was determined to be August 30, 2011.

Further, the Board is bound by the February 2018 final Board decision which clearly found that the 1997 rating decision became final. In this regard, the Board also notes that it is possible that clear and unmistakable error may have been made in this prior final decision, especially in light of the appellant's contentions regarding the application of 38 C.F.R. § 3.156(c). However, the appellant's current appeal does not arise from a motion alleging clear and unmistakable error in the 2018 final Board decision. As such, the Board is currently not able to disturb the prior final Board decision. Although the appellant's representative has made persuasive arguments as to 38 C.F.R. § 3.156(c) having previously been misapplied in the 2018 Board decision, such is a matter to be addressed with a motion for clear and unmistakable error at this time, given the procedural history in this case. The appellant is free to file such a claim, but she has not done so. Thus, the Board does not have jurisdiction to determine whether clear and unmistakable error exists in the February 2018 Board decision, particularly as to any matter decided therein which could allow for an effective date earlier than August 30, 2011 (i.e., the finality of prior decisions regarding service connection for the Veteran's cause of death). 

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Accordingly, given the prior final Board decision determining that the 1997 rating decision became final, the Board is currently left with the Veteran's August 30, 2011, petition to reopen as the earliest evidence of an application to reopen the matter following a final prior disallowance. As such, under the law, the earliest effective date that can be assigned for service connection for the Veteran's cause of death is August 30, 2011. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii).

 

 

CLAIRE M. DAVIDOSKI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Trevor T. Bernard, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.