Citation Nr: A21020024 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 210126-135683 DATE: December 15, 2021 ORDER Entitlement to an earlier effective date of August 1, 1988 for the award of service connection for the cause of the Veteran's death is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran had active service in the U.S. Navy from November 1968 to August 1970 and is presumed to have had herbicide agent exposure during service in the offshore waters of the Republic of Vietnam during the Vietnam era. 2. The Veteran died in August 1988, due to lung cancer. 3. Resolving reasonable doubt in the appellant's favor, her original claim for service connection for the cause of the Veteran's death (one basis for Dependency and Indemnity Compensation (DIC) benefits) was received by VA within one year of the Veteran's death. 4. A claim for service connection for the cause of the Veteran's death was received by VA on August 18, 2016. 5. In the July 2020 rating decision on appeal, the AOJ granted service connection for the cause of the Veteran's death, effective August 18, 2015, and the appellant appealed for an earlier effective date. 6. At an August 2021 Board hearing, the appellant testified that she applied for VA survivor's benefits in person in 1988 at the VA Regional Office (RO) in Boston, but her claim was never adjudicated until after she filed a second claim in 2016. 7. At the Board hearing, the appellant submitted copies of RO letters addressed to her and dated in November 1988 and August 1989, acknowledging her claim for benefits. CONCLUSION OF LAW The criteria for an earlier effective date of August 1, 1988, for the award of service connection for the cause of the Veteran's death, have been met. 38 U.S.C. §§ 1116, 1116A, 5107, 5110; 38 C.F.R. §§ 3.114, 3.309(e), 3.400, 3.816(d)(3). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran died in August 1988, and the appellant is his surviving spouse. The rating decision on appeal was issued in July 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2020 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for the cause of the Veteran's death (one basis for DIC benefits), effective August 18, 2015, and the appellant appealed for an earlier effective date. In the January 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In August 2021, the appellant testified at a Board hearing before a Veterans Law Judge other than the undersigned. Under the AMA, unlike the Legacy Appeal System, the undersigned Acting Veterans Law Judge may adjudicate the appeal even though a different Veterans Law Judge held the appellant's hearing. See 38 C.F.R. § 20.706. A transcript of the hearing is associated with the claims file and has been reviewed in detail. Governing Law and Regulations Unless specifically provided otherwise, the effective date of an award based on a claim for DIC shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. If a claim for service-connected death is received within one year of the Veteran's death, the effective date will be the first day of the month in which the Veteran's death occurred; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(a), (d); 38 C.F.R. § 3.400(c)(2). Retroactive effective dates are allowed, to a certain extent, in cases where an award of DIC is granted pursuant to a liberalizing law, provided that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and was continuously eligible from that date to the date of claim or administrative determination of entitlement. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a) (2), (3). However, district court orders have created an exception to the generally applicable rules in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 governing the assignment of effective dates in certain cases. See Nehmer v. United States Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) ("Nehmer I"), and the specific guidance provided in Nehmer v. United States Veterans Admin., 32 F. Supp. 2d. 1175 (N.D. Cal 1999) ("Nehmer II"), and Nehmer v. United States Veterans Admin., No. C86-6160 TEH (N.D. Cal. Dec. 12, 2000) (class action order). The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a "Nehmer class member" has been granted compensation from a covered herbicide disease. A "Nehmer class member" includes a surviving spouse of a deceased Vietnam Veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(ii), (b)(2)(i). The term "covered herbicide disease" means a disease for which the Secretary of VA has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne. 38 C.F.R. § 3.816(b)(2). This includes respiratory cancers (cancer of the lung, bronchus, larynx, or trachea). 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). If a Nehmer class member is entitled to DIC for a death due to a covered herbicide disease, the effective date of the award will be as follows: 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. 38 C.F.R. § 3.816(d)(1). 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)(2). If the class member's claim referred to in paragraph (d)(1) or (d)(2) of this section was received within one year from the date of the veteran's death, the effective date of the award shall be the first day of the month in which the death occurred. 38 C.F.R. § 3.816(d)(3). If the requirements of paragraph (d)(1) or (d)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. 38 C.F.R. § 3.816(d)(4). Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) created new statutory requirements for the adjudications of certain claims based on Veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam. A Veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116A(b) (effective January 1, 2020). Except as provided by paragraph (2), the effective date of an award under this section shall be determined in accordance with 38 U.S.C. § 5110. 38 U.S.C. § 1116A(c)(1). 38 U.S.C. § 1116A(c)(2)(A) provides that notwithstanding 38 U.S.C. § 5110(g), VA shall determine the effective date of an award based on a claim under this section for an individual described in subparagraph (B) by treating the date on which the individual filed the prior claim specified in clause (i) of such subparagraph as the date on which the individual filed the claim so awarded under this section. An individual described in this subparagraph is a veteran, or a survivor of a veteran, who meets the following criteria: The veteran or survivor submitted a claim for disability compensation on or after September 25, 1985, and before January 1, 2020, for a disease covered by this section, and the claim was denied by reason of the claim not establishing that the disease was incurred or aggravated by the service of the veteran, and the veteran or survivor submits a claim for disability compensation on or after January 1, 2020, for the same condition covered by the prior claim under clause (i), and the claim is approved pursuant to this section. 38 U.S.C. § 1116A(c)(2)(B)(i), (ii). 1. Entitlement to an earlier effective date prior to August 18, 2015 for the grant of service connection for the cause of the Veteran's death In the July 2020 rating decision on appeal, the AOJ granted service connection for the cause of the Veteran's death and DIC, finding that he is presumed to have been exposed to an herbicide agent during service in the offshore waters of the Republic of Vietnam, based on the BWN Act and a review of the deck logs of the USS Newport News. An effective date of August 18, 2015 was assigned (one year prior to the date of receipt of the August 18, 2016 claim), pursuant to 38 C.F.R. § 3.114(a)(2). The appellant contends that she is entitled to an earlier effective date for the award of DIC, because she had a pending unadjudicated November 1988 claim for service connection for the cause of the Veteran's death and DIC benefits. See June 2017 letter, August 2017 substantive appeal, July 2020 statement, and August 2021 Board hearing transcript. At the Board hearing, she testified that she applied for VA survivor's benefits including DIC in person in 1988 at the VARO in Boston, but her claim was never adjudicated until after she filed a second claim in 2016. She stated that she received letters from the RO dated in November 1988 and August 1989 acknowledging her original claim for DIC benefits, and submitted copies of these letters at the Board hearing. She stated that she did not make copies of documents in 1988, and the appellant's representative contended that VA misplaced her original DIC claim. The appellant testified that she believed VA was processing her 1988 DIC claim because of the RO letters she received. She stated that she called VA to find out the status of her claim but was told that these claims take a long time and that many other people had also requested benefits. The Veteran's service personnel records show that he had active service in the U.S. Navy from November 1968 to August 1970, including service on the USS Newport News (CA-148) when the ship visited several ports other than Vietnam and was deployed for a tour of combat operations with the U.S. Seventh Fleet. The Veteran was aboard the ship for periods between February and June 1969 when it was a Naval Gunfire Support Ship and performed combat operations in Vietnamese waters. The Veteran's DD Form 214 reflects that his primary military occupational specialty (MOS) was radio operator. The Veteran's death certificate shows that he died in August 1988, and the immediate cause of death was lung cancer. An Application for DIC, Death Pension, and/or Accrued Benefits (VA Form 21-534EZ) was received from the appellant on August 18, 2016, in which she contended that the Veteran's death was due to Agent Orange exposure in Vietnam during service. She asserted that although the Veteran was in the Navy, he had boots on the ground in Vietnam, where he was a radio operator for quite some time. The claims file does not contain any prior formal or informal claim for DIC. At the August 2021 Board hearing, the appellant submitted two letters addressed to her from the Boston RO dated in November 1988 and August 1989. The November 21, 1988 letter was addressed to the appellant, "A/C" [the Veteran], and stated "This is to let you know that we have received your application for benefits. There is no need for you to take any additional action at this time. However, if you find it necessary to contact us, be sure to indicate THE VETERAN'S file number and name." The letter was written on a VA Form 21-8332-1, published August 1979. The August 30, 1989 letter was also addressed to the appellant, "A/C" [the Veteran], and stated "This is to let you know that we have received your application for benefits. There is no need for you to take any additional action at this time. However, if you find it necessary to contact us, be sure to indicate THE VETERAN'S file number and name." The letter was signed by J. Chandless, Adjudication Officer, and written on a VA Form 20-8992, published October 1986. Resolving reasonable doubt in the appellant's favor, and with consideration of her competent and credible testimony and statements, and the November 1988 and August 1989 letters from the Boston RO to the appellant documenting receipt of her application, the Board finds that she filed her original DIC claim at the Boston RO in 1988, within one year from the date of the Veteran's death, and that this claim remained pending and unadjudicated until the March 2017 rating decision that denied the appellant's claim for DIC partly on the basis that there was no evidence that the Veteran had service in the Republic of Vietnam or exposure to herbicides in service. The July 2020 award of presumptive service connection for the cause of the Veteran's death, based on presumed exposure to an herbicide agent in service, was based upon liberalizing laws. Specifically, the Agent Orange Act of 1991, which provided for presumptive service connection for covered herbicide diseases, and the Blue Water Navy Vietnam Veterans Act of 2019, which provided a presumption of service connection for diseases covered by 38 U.S.C. § 1116 for Veterans who served offshore of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. The appellant submitted a claim for disability compensation on or after September 25, 1985, and before January 1, 2020, for a disease covered by this section, and the claim was denied by reason of the claim not establishing that the disease was incurred or aggravated by the service of the Veteran. 38 U.S.C. § 1116A(c)(2) (B)(i). However, an earlier effective date is not warranted under 38 U.S.C. § 1116A(c)(2), because the appellant's recent DIC claim was not filed on or after January 1, 2020. 38 U.S.C. § 1116A(c)(2)(B)(ii). The effective date of the award of DIC is therefore determined under 38 U.S.C. § 5110. 38 U.S.C. § 1116A(c)(1). However, the Board finds that in this case, an earlier effective date for the award of DIC is warranted under 38 C.F.R. § 3.816(d)(3), which provides an exception to the generally applicable rules in 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 governing the assignment of effective dates in certain cases. The Board finds that the appellant is a Nehmer class member who has been granted compensation for a covered herbicide disease. Since her original DIC claim was pending before VA on May 3, 1989, and was received within one year from the date of the Veteran's death, the effective date of the award of DIC is August 1, 1988, the first day of the month in which the Veteran's death occurred. 38 C.F.R. § 3.816(d)(3). Accordingly, the Board finds that an earlier effective date of August 1, 1988 for the award of DIC is warranted. K. Marenna Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.