Citation Nr: 21006558 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-42 842 DATE: February 4, 2021 ORDER Entitlement to an effective date earlier than May 4, 2014 for service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Appellant is the Veteran’s surviving spouse. 2. The Veteran died on March [REDACTED], 2009 from severe coronary artery disease. 3. The Appellant filed a claim for Dependency and Indemnity Compensation (DIC) benefits on May 4, 2015. 4. In a May 2015 rating decision, service connection for the Veteran’s cause of death was granted, effective May 4, 2014, the date one year prior to the date of application for benefits. 5. Prior to May 4, 2015, no claim for service connection nor for DIC benefits was received by VA. CONCLUSION OF LAW The criteria for an effective date prior to May 4, 2014 for the grant of service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.155, 3.307, 3.309, 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1965 to October 1967. The Veteran died on March [REDACTED], 2009. The Appellant is the Veteran’s surviving spouse. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for the Veteran’s cause of death, effective May 4, 2014. In September 2020, the Veteran testified at a virtual video conference hearing before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. 1. Entitlement to an effective date earlier than May 4, 2014 for service connection for the cause of the Veteran's death The Appellant asserts that an effective date of March [REDACTED], 2009, the date of the Veteran’s death, for the grant of service connection for cause of death is warranted. She contends that the Veteran intended to file a claim for disabilities related to exposure to Agent Orange during service, prior to his death, and had scheduled an Agent Orange examination, but he passed away before the scheduled examination. DIC is a benefit payable to a veteran's surviving spouse or child because of his service-connected death. In such a claim, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related, thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Generally, and 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). However, for DIC benefit claims where the application is filed 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; otherwise, the effective date for DIC is the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114(a). Ordinarily, under the above provisions for liberalizing laws, awards based on presumptive service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption. Id. Ischemic heart disease was included as a presumptive herbicide-related disease under 38 C.F.R. § 3.309(e), which was made effective by VA as of August 31, 2010. See 75 Fed. Reg. 53,702 (August 31, 2010). Nevertheless, with respect to earlier effective date claims for service connection for diseases presumed to be caused by herbicide or Agent Orange exposure, VA has promulgated special rules to implement orders of a United States District Court in the class action of Nehmer v. United States Department of Veteran's Affairs. 38 C.F.R. § 3.816; see also Nehmer v. U.S. Veterans Admin., 32 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal 1999) (Nehmer II); Nehmer v. Veterans Admin. of the Gov't of the U.S., 284 F.3d 1158 (9th Cir. 2002) (Nehmer III); Nehmer v. U.S. Veterans Admin., 494 F.3d. 846 (2007) (Nehmer IV). The regulation 38 C.F.R. § 3.816 defines Nehmer class members and sets forth effective date rules for Vietnam veterans that currently have a "covered herbicide disease," or have died from a "covered herbicide disease." In short, the Nehmer litigation has created an exception to the generally applicable effective date rules contained in 38 U.S.C. § 5110 (g) and 38 C.F.R. § 3.114. In pertinent part, a "Nehmer class member" is defined as a Vietnam veteran who has a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i). According to 38 C.F.R. § 3.816(b)(2), a "covered herbicide disease" includes a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. As noted above, ischemic heart disease, to include coronary artery disease, was not added to the list of presumptive disabilities until August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010, rule specifically notes that the Nehmer provisions apply to the newly covered diseases, to include ischemic heart disease. Id.; see also Garza v. Shinseki, 480 Fed. Appx. 984, 987 (Fed. Cir. 2012) (specifically associating ischemic heart disease with Nehmer despite the language of 38 C.F.R. § 3.816). The Nehmer 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. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease (here August 31, 2010). In these situations, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). In this case, the Veteran passed away in March 2009 from severe coronary artery disease, according to the death certificate submitted by the Appellant. On May 4, 2015, the Appellant submitted a formal VA Form 21-534EZ Application for DIC benefits. The RO issued a rating decision in May 2015, granting service connection for cause of death, effective May 4, 2014, the date one year prior to the date of the claim. In December 1, 2008 correspondence, received by VA in September 2020, it indicates that the Veteran was advised to call to make his next appointment on June 1, 2009. VA treatment records from August 2008 reveal that the Veteran requested an Agent Orange examination. In the August 2016 VA Form 9, the Appellant stated that the Veteran had requested an Agent Orange examination in December 2008, and that she believes that he intended to file an Agent Orange claim. She stated that the Veteran was treated at the VA medical center at various times and was given an appointment with a primary care doctor for an examination, which would establish ischemic heart disease connected to Agent Orange. She stated that prior to this he was having issues with hypertension and cholesterol. She stated that his appointment was supposed to be in June 2009, but he passed away in March 2009, and therefore he was unable to file a claim. She stated that his death, caused by severe heart disease, was service-connected but she was not aware that she could file the claim as his widow. She stated that the strongest evidence that she has is that he intended to file but passed away before the process was started, and that the Agent Orange claim would have been started if he had an earlier appointment. During the September 2020 Board hearing, the Appellant testified that the Veteran had an appointment in August of 2008 when he requested an examination for Agent Orange. She testified that in December they sent him a letter advising that he needed to go in for an appointment in May, but he died before he was able to do so. She testified that the Veteran was being treated by VA and a private doctor for high cholesterol and atherosclerosis at the time of his death, and that the cause of death on his death certificate was coronary artery disease. She stated that when the Veteran died, she did not know that she could file a claim until she found out in 2015. She stated that it looks like he did not have an intent to file but that he actually did because he requested the Agent Orange examination in August of 2008 and was told to request an appointment in May of 2009. In a September 2020 statement, the Appellant stated that the December 2008 letter from VA shows that the Veteran intended to have an appointment for Agent Orange in May per instructions from his doctor. She stated that the Veteran was exposed to Agent Orange during his deployment in Vietnam. She stated that he had requested an Agent Orange examination and had intent to file before his death. Here, the Veteran was not a “Nehmer class member” as he had not been granted compensation for a covered herbicide disease and had not filed a claim for disability compensation for the covered herbicide disease prior to his death in March 2009. Additionally, there was no claim for DIC submitted to VA prior to May 4, 2015. As such, 38 C.F.R. § 3.816(d)(1) is not applicable. Although the Appellant has argued for an earlier effective date, an effective date prior to May 4, 2014 is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The evidence demonstrates that the Veteran died from coronary artery disease in March 2009 and was previously treated for high cholesterol, hypertension, and atherosclerosis prior to his death. The evidence also demonstrates that the Veteran requested a VA examination for disabilities related to Agent Orange exposure; however, prior to his death, he was unable to undergo the requested examination. Prior to his death, the Veteran did not file a claim for service connection for any claims, including any possibly related to exposure to Agent Orange during service. The record does not support that a claim for service connection was filed prior to the Veteran’s death, or that a claim for DIC was filed within a year of his death. As none of the provisions of 38 C.F.R. § 3.816 are applicable, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(d)(4). As such, the currently assigned May 4, 2014 effective date is the earliest possible effective date available. After a thorough review of the evidence, an effective date earlier than May 4, 2014 cannot be assigned here. There is no evidence prior to that date indicating an interest by the Veteran in claiming service connection for any specific disabilities related to service. The Veteran had not filed any claims or submitted an Intent to File a claim, related to exposure to Agent Orange or otherwise. The evidence does clearly show that he expressed interest in receiving a VA examination for Agent Orange exposure, but his request for an Agent Orange examination cannot serve as an informal claim for benefits absent a clear intent to apply for benefits. That is not shown in this case. After the Veteran’s death in March 2009, a claim for disability benefits was not received by VA until May 4, 2015 when the Appellant filed the DIC application. Based on the above, there is no legal entitlement to an effective date prior to May 4, 2014, for the grant of service connection for the cause of the Veteran’s death. While it is unfortunate that the appellant was not aware that she could file for death benefits at the time of the Veteran’s death, the Board is nevertheless bound by VA law and regulations, and is without authority to grant claims on an equitable basis, where, as here, the law, and not the facts are dispositive of the appeal. As an effective date prior to May 4, 2014 for the grant of service connection for the cause of the Veteran’s death is precluded by law, the claim must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.