Citation Nr: A21020398 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 200713-97362 DATE: December 22, 2021 ORDER Entitlement to an effective date of August 19, 2015, but no earlier, for the award of service connection for the cause of the Veteran's death (COD) is granted. FINDINGS OF FACT 1. In a May 2012 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for the cause of the Veteran's death. The Appellant initiated but did not perfect an appeal. 2. On August 19, 2015, the Appellant filed a formal claim for service connection for the cause of the Veteran's death that remained pending until the benefit was granted. There was no prior pending formal or informal claim. 3. During the course of the appeal, service department records that existed and had not been previously associated with the file were added. These records were not relevant to the appeal for entitlement to service connection for the cause of the Veteran's death, as such records did not address a dispositive issue. CONCLUSIONS OF LAW 1. The May 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.1103. 2. The criteria for the assignment of an effective date of August 19, 2015, but no earlier, for the award of service connection for the cause of the Veteran's death are met. 38U.S.C. §§5110, 5107; 38 C.F.R. §§3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from November 1966 to September 1968, to include service in the Republic of Vietnam. He passed away in April 2003. The Appellant is the Veteran's widow. This matter come before the Board of Veterans' Appeals (Board) on appeal from an August 2019 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office. The Appellant timely appealed this determination to the Board by requesting the Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Appellant is seeking an effective date of June 24, 2011, for the award of service connection for cause of death. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation (DIC) based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Regulations defining a claim were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Under the regulations prior to March 24, 2015, an informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. 38 C.F.R. §§ 3.1(p), 3.155(a). Under 38 C.F.R. § 3.156(c)(1), if at any time after VA issues a decision on a claim, 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. Section 3.156(c)(3) provides that if newly received, relevant service department records form all or part of the basis for the award of a benefit, then the effective date for such award is the date entitlement arose or the date VA received the previously decided claim, whichever is later. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014) (noting that essentially, the purpose of 38 C.F.R. § 3.156(c) is to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of [the] earlier claim). For new service department records to be relevant pursuant to 38 C.F.R. § 3.156(c), they must address a factual issue that was dispositive against the veteran in the prior VA adjudication. See Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). Based on a review of the evidence, an effective date of August 19, 2015, but no earlier, is warranted. The Appellant initially filed a claim for service connection for DIC benefits due to cause of death of the Veteran on June 24, 2011. In a May 2012 rating decision, VA denied entitlement to service connection for the cause of the Veteran's death. In denying the claim, although exposure to herbicide agents was presumed based on the Veteran's service in Vietnam, the AOJ determined that the evidence did not support a finding that a direct relationship existed between the Veteran's fatal glioblastoma and his service. The Appellant initiated an appeal, but did not perfect an appeal to the Board by filing a timely VA Form 9 within 60 days of receipt of a May 2014 Statement of the Case, nor was any new and material evidence received during that time. As such, the May 2012 rating decision is final. 38 C.F.R. §§ 3.104, 20.1103. In March 2015, the regulations were amended to require claims to be filed on specific forms as prescribed by the Secretary. On August 19, 2015, the Appellant filed a new claim for DIC benefits. See August 19, 2015 VA Form 21-534EZ. A September 2015 rating decision reopened and denied the claim on the merits. Within one year, in April 2016, the Appellant filed a timely Notice of Disagreement as to the decision to deny entitlement to service connection for the cause of the Veteran's death. While the Board recognizes there was an intervening rating decision issued in January 2016 denying the benefit sought, because the April 2016 Notice of Disagreement was received within one year of the September 2015 rating decision, and disagreed with the same issue, the Board will accept it as continuing the Appellant's August 19, 2015 claim. This benefit was ultimately granted in an August 2019 Board decision. The AOJ implemented the Board's decision in the August 2019 rating decision on appeal. The AOJ assigned an effective date of October 9, 2018 for the award, and the Appellant disagreed. In a now-vacated October 2020 decision, the Board awarded an earlier effective date to November 13, 2015. Upon further review and reconsideration of the Veteran's filings, and for the reasons discussed above, the Board will award an earlier effective date of August 19, 2015, which is consistent with the date of the earlier pending claim. To this extent only, the appeal is granted. As noted above, the Appellant's attorney has asserted that an effective date coinciding with the Appellant's original claim, received on June 24, 2011, should be assigned. He asserts that relevant service records that were available, but not obtained at the time of the May 2012 rating decision were added to the record and at least in part relied upon by VA to award the benefit, triggering application of the provisions of 38 C.F.R. § 3.156(c). For 38 C.F.R. § 3.156(c) to be applicable in this case, the records received must be "relevant." As noted above, the meaning of "relevant" in this regulation was discussed recently by the Court of Appeals for the Federal Circuit in Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). Specifically, for new service department records to be relevant pursuant to 38 C.F.R. § 3.156(c), they must address a factual issue that was dispositive against the claimant in the prior VA adjudication. In this case, at the time of the May 2012 rating decision, the evidence already confirmed that the Veteran passed away from glioblastoma, and that the Veteran served in Vietnam during the Vietnam Era as a petroleum storage specialist (see the Veteran's DD Form 214). Thus, is was not in dispute that for the purposes of adjudicating the Appellant's cause of death claim, that the Veteran was presumed to have been exposed to herbicide agents while serving in Vietnam. As noted above, the AOJ denied the benefit sought based on a finding that the evidence at the time did not show that it was at least as likely as not that the Veteran's fatal glioblastoma was related to his period of service, to include his presumed herbicide agent exposure. Indeed, this was the dispositive issue against the claimant. In November 2018, the Appellant's attorney submitted additional service department records from the Army that described in more detail the Veteran's military occupational specialty, identified his unit, and included a record of helicopter and ground spraying missions, aborts, leaks and incidents, specifying how many gallons of each herbicide was used, and for what reasons, on specific days in specific provinces of Vietnam. The service department records also included unit histories placing the Veteran's unit in some of the provinces identified by the spraying record as having been a location where herbicide agents were used. For example, the records show that the Veteran's unit was sent to investigate a pipeline fire in Pleiku in June 1968, with subsequent travel to Binh Dinh province. The Appellant's attorney asserts that these newly added service department records are relevant because they suggest the Veteran had "excessive" exposure to herbicide agentsspecifically Agent Orangewhile performing his duties as a petroleum storage specialist, specifically in provinces where Agent Orange was used, as tallied in the use report. He contends the amount of exposure is relevant to the question of relationship to service in this case, and that insofar as no relationship was acknowledged by the AOJ in May 2012 in denying the Appellant's original claim, the records should be found to be relevant under Kisor, and the provisions of 38 C.F.R. § 3.156(c) should apply. The attorney states that because a favorable private medical nexus opinion provided by Dr. M.K. relied in part on an understanding that the Veteran had a high degree of exposure to herbicides in service (based on the Veteran's occupational specialty and his unit histories) and because the VA in turn relied in part on this favorable opinion to grant the benefit sought, an effective date to June 2011 should be assigned, as per the provisions of 38 C.F.R. § 3.156(c)(3). The Board disagrees with the initial contention by the Appellant's attorney that the newly received service department records are relevant to the appeal. While the Appellant's attorney and Dr. M.K. have looked at the service records and drawn a conclusion that the Veteran must have had "excessive" or "significant" exposure to Agent Orange given that the herbicide was used in provinces where the Veteran served, the records themselves do not in any way quantify this Veteran's actual exposure amount, either in his travels from province to province, or in performance of his petroleum storage specialist duties. While the Veteran is presumed to have been exposed to herbicides (a fact that was not at issue in May 2012), there is no legal presumption that service in certain provinces of Vietnam exposed an individual to more Agent Orange than in others. The service department records submitted by the Appellant's attorney merely show that herbicide agents were used in provinces where the Veteran served. This fact was already understood by application of the presumption of exposure under VA's laws and regulations in May 2012. The descriptions of the Veteran's occupational specialty, and the entries showing that his unit was called to perform emergency work on fuel pipelines similarly do not speak to whether this Veteran was heavily exposed to Agent Orange. The conclusion drawn by the Appellant's attorney and Dr. M.K. that the Veteran must have had excessive or significant exposure given what was identified in these service department records is speculative. Insofar as Dr. M.K accepted that the Veteran was heavily exposed to herbicides in service as a fact supportive of a favorable nexus opinion in this case, such does not change the nature of service department records themselves, which as discussed above, in no way clarify the extent of his exposure over and above what is already presumed under the laws and regulations. As such, the Board does not find the newly added service department records to be "relevant" to this appeal, as they do not address a factual issue that was dispositive against the claimant in the prior VA adjudication. Indeed, notwithstanding the speculations of the Appellant's attorney and Dr. M.K., the records make no suggestion that a relationship exists between the Veteran's herbicide exposure and his fatal glioblastoma. Moreover, the Court of Appeals for Veterans Claims (the Court) has suggested that in cases where herbicide exposure is presumed, there are no "additional requirements about degrees of exposure or MOS" when it comes to determining whether a given health outcome may be due to such exposure. McKinney v. Wilkie, No. 19-6681 (Vet. App. August 25, 2020) (mem dec); see Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions, while not precedential, may be relied upon for any persuasiveness or reasoning they contain). In this connection, the amount or extent of this Veteran's herbicide exposure was never "in question" or at issue at the time of the May 2012 rating decision, contrary to the assertions of the Appellant's attorney. For all of these reasons, an earlier effective date is not warranted pursuant to 38 C.F.R. § 3.156(c). Insofar as the Board, in granting the Appellant's cause of death claim, relied in part upon the opinion of Dr. M.K., it made no specific finding that the service department records demonstrated that the Veteran had excessive herbicide exposure. Rather, the Board weighed the evidence at the time, to include competing medical nexus opinions, and found that the probative value of the evidence as a whole, both for and against the claim, was in relative equipoise. See the August 2019 Board decision, at 5 ("Thus, in this instance, the Board acknowledges the differing opinions proffered by two equally qualified medical professionals, based on the Veteran's medical history, analysis of relevant risk factors, to include herbicide exposure, and reference to relevant medical literature. Although the opinions provide persuasive arguments both for and against a finding that the Veteran's cancer is related to herbicide exposure, the opinions similarly contain respective weaknesses in their rationales that prevent the Board from attaching greater probative value to one versus the other. Thus, the Board concludes that one opinion does not outweigh the other and finds that the record evidence is at least in relative equipoise as to whether the Veteran's glioblastoma multiforme, is at least as likely as not related to Agent Orange exposure"). In sum, an effective date of August 19, 2015 for the award of service connection for the cause of the Veteran's death is granted. An earlier date may not be assigned, as there was no prior pending unadjudicated claim, either formal or informal, and the provisions of 38 C.F.R. § 3.156(c) are not for application in this case. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Crohe, 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.