Citation Nr: 21009958 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-21 899 DATE: February 23, 2021 ORDER The January 2008 rating decision contained clear and unmistakable error (CUE); service connection for the cause of death, effective April 3, 2006, is granted. Entitlement to retroactive benefits pursuant to Nehmer v. Veterans Administration of the Gov’t of the U.S. (Nehmer) is denied. FINDINGS OF FACT 1. The January 2008 rating decision that granted service connection for cause of the Veteran’s death effective April 2007 became final because the appellant did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The statutory or regulatory provisions then extant at the time were not correctly applied in the January 2008 rating decision, and the failure to correctly apply the laws and regulations manifestly changed the outcome of that rating decision. 3. Prior to the January 2008 rating decision that granted service connection for cause of death based on lung cancer, the RO did not deny compensation for the same covered herbicide disease and such a claim was not pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for that condition. 4. More than one year after the effective date of the law establishing a presumption of service connection for lung cancer, VA received the appellant’s April 3, 2007, claim of entitlement to service connection for cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of a January 2008 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been satisfied. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a), 3.116. 2. The criteria for the award of retroactive benefits under Nehmer have not been satisfied. 38 U.S.C. § 501; 38 C.F.R. § 3.816. 3. The effective date of April 3, 2006, for the award of service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.114(a)(3). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to August 1971, to include combat service in the Republic of Vietnam, and his decorations included the Bronze Star Medal and Combat Infantryman Badge. The Veteran died in December 1988 and the appellant is his surviving spouse. In January 2020, the Board denied entitlement to revision of the January 2008 rating decision on the basis of CUE to reflect an effective date prior to April 2007 for the award of service connection for cause of death and entitlement to retroactive benefits pursuant to Nehmer. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in August 2020, on the basis of a Joint Motion for Remand (Joint Motion), vacated the denial and remanded the matter to the Board for further action. The appellant asserts that there is CUE in the January 2008 rating decision that granted service connection for cause of the Veteran’s death effective April 3, 2007, that is, the date of the appellant’s claim to reopen the previously denied claim of entitlement to service connection for cause of the Veteran’s death. The appellant contends that cause of death should have been granted effective January 1, 1989, that is, the first day of the month following the date of the Veteran’s death. See, e.g., Brief (December 2020). A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, a January 2008 rating action granted service connection for cause of the Veteran’s death effective April 2007, and the appellant did not file a timely Notice of Disagreement challenging this determination, nor did she submit new evidence and material evidence within one year of its promulgation. Thus, the January 2008 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Historically, in May 1987 and July 1988, the RO denied the Veteran’s claim for service connection for stomach cancer. On December 5, 1988, the Veteran died. His death certificate indicates that the immediate cause of death was pneumonia due to neutropenia and treatment for germ cell cancer. The certificate notes that hepatic insufficiency was also a significant condition contributing to the Veteran’s cause of death. In June 1991, the RO denied service connection for cause of the Veteran’s death. The RO’s decision noted that at the time of his death, the Veteran was in receipt of service connection for noncompensably disabling malaria and a left-hand disability. The RO found that service connection was not warranted for stomach cancer and that the pneumonia, neutropenia, and germ cell cancer that led to the Veteran’s death are not presumptively related to the Veteran’s military service, to include his in-service exposure to herbicide agents. In September 2004, the appellant filed a claim to reopen the issue of entitlement to service connection for cause of death. In a December 2004 rating decision, the RO denied the appellant’s claim, finding that new and material evidence had not been submitted to reopen the claim. On April 3, 2007, the appellant submitted a claim to reopen the issue of entitlement to service connection for cause of death. In May 2007 and December 2007, private and VA physicians agreed that the Veteran died of lung cancer, which was, until that time, misdiagnosed as germ cell or stomach cancer. See Dr. C. (May 2007); VA opinion (December 2007). Based on the aforementioned medical opinions, a January 2008 rating decision reopened and granted service connection for cause of death effective April 3, 2007, that is, the date of receipt of the appellant’s claim to reopen. The decision explained that the cause of the Veteran’s death was determined to be lung cancer, which was presumptively related to the Veteran’s in-service exposure to an herbicide agent. The appellant contends that the January 2008 rating decision failed to follow the Nehmer Court Order when assigning the effective date for the cause of the Veteran’s death. She contends that service connection should have been effective the date following the Veteran’s death since the 2007 medical opinions show that the Veteran’s lung cancer was previously misdiagnosed as stomach and germ cell cancer, and lung cancer is a covered herbicide disease. See Brief (December 2020). Generally, the effective date for service connection for cause of death after separation from service is the first day of the month in which the veteran’s death occurred if claim is received within one year after the date of death; otherwise, date of receipt of claim. See 38 C.F.R. § 3.400(c). With respect to reopened claims, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). However, VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam veteran who has been diagnosed with a disorder presumptively associated with herbicide exposure, to include lung cancer. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816 (c)(1)-(3). If the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816 (c)(4). 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. The effective date of the law establishing a presumption of service connection for respiratory cancer is June 9, 1994. See 59 Fed. Reg. 29,723, 29, 724 (June 9, 1994). 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. See Nehmer I, supra at 1409. The Nehmer stipulations were later incorporated into a final regulation, 38 C.F.R. § 3.816, that became effective on September 24, 2003. That regulation defines a “Nehmer class member” to include a Veteran who has or died from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1)(i), (b)(2)(i). 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. If a Nehmer class member is entitled to dependency and indemnity compensation (DIC) for a death due to a covered herbicide disease, the effective date of the award will be as follows: (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. (3) 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. (4) 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). Here, Nehmer is not applicable, as the requirements of 38 C.F.R. § 3.816(d) have not been satisfied. First, 38 C.F.R. § 3.816(d)(1) does not apply as VA did not deny service connection for cause of death until 1991. Second, 38 C.F.R. § 3.816(d)(2) does not apply. In this regard, prior to the January 2008 rating decision that granted service connection for cause of death based on lung cancer, the RO did not deny compensation for the same covered herbicide disease and such a claim was not pending before VA on May 3, 1989, or received by VA between that date and the effective date of the law establishing a presumption of service connection for that condition. Rather, the RO denied service connection for stomach and germ cell cancer and cause of death related to the same. See Rating Decisions (May 1987, July 1988, June 1991, and December 2004). The Board finds that stomach and germ cell cancers cannot be reasonably construed as lung cancer. Indeed, prior to receipt of the 2007 medical opinions, none of the lay or medical evidence of record at the time of the May 1987, July 1988, June 1991, and December 2004 rating actions indicated that the Veteran suffered from lung cancer. In other words, the appellant’s April 2007 claim was the first indication that she sought benefits for a presumptive disease. The appellant argues that regulatory history shows that VA did not intend for a difference in the disease which is contemplated in a previous denial (here stomach and germ cell cancer) and that for which service connection is later granted (here, lung cancer) to prohibit a surviving spouse from receiving benefits under Nehmer. In support of her argument, she quotes 68 Fed. Reg. 4132 (Jan. 28, 2003), “rather than requiring a specific finding that the prior denial of DIC expressly referenced the same covered herbicide disease that provided the basis for the current DIC award, we propose to require only that the prior decision issued between September 25, 1985, and May 3, 1989, have denied DIC for the same death.” The Board finds that the appellant’s reliance upon the cited portion of the Federal Register is misplaced, as this portion pertains to § 3.816(d)(1). As noted above, since § 3.816(d)(1) only applies to situations where a rating decision issued between September 25, 1985, and May 3, 1989, denied service connection, and the appellant’s claim was denied in a 1991 rating decision, § 3.816(d)(1) in not applicable. Moreover, the relevant federal register section pertaining to § 3.816(d)(2) does indicate that the Secretary intended to situations such as the appellant’s, that is, where cause of death was initially denied for a non-covered condition, and subsequently granted on the basis of new evidence indicating that a separate, covered condition caused the Veteran’s death. For these reasons, the Board finds no error in the RO’s application of § 3.816(d)(2) in its January 2008 rating decision. Third, 38 C.F.R. § 3.816(d)(3) does not apply. The rationale is that 38 C.F.R. § 3.816(d)(3) applies to claims covered under 38 C.F.R. § 3.816(d)(1) and (2), and, for the reasons discussed above, these sections do not apply. As Nehmer is not 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 outlined above, in a June 1991 rating decision, the RO denied service connection for cause of the Veteran’s death and declined to reopen the appellant’s claim in a December 2004 rating decision. Both decisions became final as the appellant did not submit a notice of disagreement or new and material evidence within the appeal period for either decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Following the December 2004 rating decision, the earliest claim of entitlement to service connection for cause of the Veteran’s death was received on April 3, 2007. The appellant does not contend otherwise and the evidence does not suggest receipt of an earlier claim. The effective date of the law establishing a presumption of service connection for respiratory cancer is June 9, 1994. See 59 Fed. Reg. 29,723, 29, 724 (June 9, 1994). As the Veteran’s claim was review more than one year after the effective date of the law 1994 liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of the April 3, 2007, claim. See 38 C.F.R. § 3.114(a)(3). As such, the earliest possible effective date for the grant of service connection for cause of the Veteran’s death is April 3, 2006. It is undisputed that the January 2008 rating decision failed to apply the provisions of 38 C.F.R. § 3.114(a)(3), and that such would have manifestly changed the outcome of the claim, that is, entitlement to service connection for cause of death effective April 3, 2006. As a result, the Board concludes that entitlement to service connection for cause of death effective April 3, 2006, one year prior to receipt of the appellant’s April 3, 2007, claim, is warranted. In sum, the Board finds that entitlement to retroactive benefits pursuant to Nehmer are not warranted as the requirements of 38 C.F.R. § 3.816(d)(1)-(2) have not been satisfied. However, as the appellant’s April 3, 2007, claim was received more than one year after the 1994 law establishing a presumption of service connection for respiratory cancer, service connection for cause of the Veteran’s death effective April 3, 2007, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, 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.