Citation Nr: 21025208 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-08 927 DATE: April 27, 2021 ORDER An earlier effective date of December 20, 2010, for the award of dependency and indemnity compensation (DIC) benefits based on service connection for the Veteran’s cause of death is granted. The Board having determined that new and material evidence has not been received, reopening of the claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. Prior to the October 2017 rating decision that granted service connection for cause of death based on prostate 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. 2. More than one year after the effective date of the law establishing a presumption of service connection for prostate cancer, on December 20, 2011, VA, on its own initiative, reviewed the claim of entitlement to service connection for cause of the Veteran’s death. 3. The additional evidence since the January 2007 Board decision is new but does not relate to an unestablished fact necessary to substantiate the claim for entitlement to DIC benefits under 38 U.S.C. § 1318. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 20, 2010, 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). 2. New and material evidence has not been presented to reopen the claim for entitlement to DIC benefits under 38 U.S.C. § 1318. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1968 to March 1970, to include combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal and Army Commendation Medal with “V” device. The Veteran died in April 2002, and his surviving spouse is the appellant. The appeal was most recently before the Board in September 2019, when it denied the appellant’s claims. In May 2020, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Joint Motion for Remand (Joint Motion), vacated the Board’s decision and remanded the matter to the Board for further action. In a November 2020 brief, the appellant’s attorney seeks revision of a decision on the basis of clear and unmistakable error (CUE) to reflect an earlier effective date for the award of DIC benefits based on service connection for the cause of the Veteran’s death. To the extent that the appellant seeks to revise the December 2011 or October 2017 rating decision, these decisions are currently in appellate status, and thus, there is no final adverse RO decision that can be subject to a CUE attack. Therefore, as a matter of law, the appellant cannot assert a claim of CUE. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). Additionally, while the January 2007 Board decision is final, the appellant has not identified the decision as the target of her motion, let alone filed a motion for revision on the basis of CUE. Therefore, adjudication of a CUE motion is inappropriate at this time. 1. An earlier effective date of December 20, 2010, for the award of DIC benefits based on service connection for the Veteran’s cause of death is granted. The appellant seeks an effective date prior to October 12, 2016, for DIC benefits based on service connection for the Veteran’s cause of death. Historically, on April [REDACTED], 2002, the Veteran died. His initial death certificate indicates that the immediate cause of death was metastatic renal cell cancer. In May 2002, the appellant filed an initial claim for DIC benefits in May 2002. In January 2007, the Board denied her claim, reasoning that the Veteran’s cause of death (renal cell cancer) was not related to a service-connected disability. In a December 20, 2011, rating decision, notice of which was issued March 2012, the RO conducted Nehmer review of the Veteran’s claims file and confirmed and continued the Board’s denial of DIC benefits. See Nehmer v. U.S. Dep’t of Veterans Affairs, 32 F.Supp.2d 1175 (N.D. Cal. 1999); see also 38 C.F.R. § 3.816. The appellant appealed. On March 7, 2016, the appellant submitted a statement, asserting that her husband’s death was due to Agent Orange exposure. On March 19, 2016, the RO issued a Statement of the Case (SOC) denying entitlement to DIC benefits. On April 26, 2016, the appellant resubmitted her March 2016 argument under cover letter stating, in part, that “[i]f you read the attached maybe it will help for new evidence.” On October 12, 2016, the appellant submitted an intent to file a claim for DIC benefits, which VA received later that month. In September 2017, the appellant submitted an amended death certificate, indicating that prostate cancer was a contributing factor in the Veteran’s death. In an October 2017 decision, the RO granted service connection for cause of death on that basis that prostate cancer was presumptively related to in-service exposure to an herbicide agent. The RO granted benefits effective the date of the appellant’s October 12, 2016, claim. In September 2019, the Board denied entitlement to an earlier effective date for the grant of DIC benefits. The Board’s decision was predicated, in part, on its determination that the December 2011 rating decision became final as the appellant did not submit a timely appeal to the March 2016 SOC. In May 2020, the Court vacated the Board’s September 2019 decision and remanded the matter to the Board to address whether the April 2016 correspondence constituted a Substantive Appeal to the March 2016 SOC. Here, the Board finds that the appellant’s April 2016 correspondence constitutes a timely Substantive Appeal to the March 2016 SOC. Before February 19, 2019, the law provided that “[a]ppellate review will be initiated by [an NOD] and completed by a [S]ubstantive [A]ppeal after a[n SOC] is furnished as prescribed in this section.” 38 U.S.C. § 7105(a) (2017). The VA appeal process required a claimant to make two filings in response to an adverse RO decision. Rivera v. Shinseki, 654 F.3d 1377, 1380 (Fed. Cir. 2011). First, the claimant files an NOD; in response, the RO prepares an SOC explaining its decision on the claim; and finally, the claimant is required to file a Substantive Appeal identifying the error or errors committed by the RO. Rivera, 654 F.3d at 1380. Section 7105 provided that a Substantive Appeal “should set out specific allegations of error of fact or law, such allegations related to specific items in the [SOC]. The benefits sought on appeal must be clearly identified.” 38 U.S.C. § 7105(d)(3) (2017). Section 7105(d)(5) further provided that “the Board . . . may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.” Id. In Rivera v. Shinseki, the Federal Circuit Court of Appeals explained that § 7105(d)(3) did not prescribe a particular format for an appeal or a particular degree of specificity that must be provided. 654 F.3d 1377, 1381 (Fed. Cir. 2011). The Federal Circuit further explained when the RO references only one issue in the SOC, the claimant’s expression of a desire to appeal from the RO’s decision effectively identifies the issue to be decided by the Board. Id. VA is to read claimants’ “submissions liberally and to consider the full context within which those submissions are made.” Id. at 1382; see Robinson v. Shinseki, 557 F.3d 1355, 1359-60 (Fed. Cir. 2009) (holding that the Board has an obligation on the Board to read such filings by claimants in a liberal manner, regardless of whether the claimant is represented by an attorney.” This inquiry is guided by the “statutory and regulatory regime that Congress created to protect veterans.” Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this case, as in Rivera, the March 2016 SOC denied one issue—entitlement to DIC benefits. The appellant’s April 2016 submission was timely as it was received within 60 days of the SOC. Additionally, as the appellant’s submission states that she hopes her argument will provide new evidence to award the DIC benefits, it expresses a desire to appeal from the RO’s decision, which confirmed and continued the Board’s denial of DIC benefits. Thus, having liberally considered the appellant’s April 2016 submission within the context in which it was made, the Board finds that it constitutes a Substantive Appeal to the March 2016 SOC. See Rivera, 654 F.3d at 1382. As a result, the appellant’s appeal stems from her May 18, 2012, claim, which the RO denied in December 2011. 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 2002. Second, 38 C.F.R. § 3.816(d)(2) does not apply because service connection was never denied for prostate cancer. In this regard, prior to the October 2017 rating decision that granted service connection for cause of death based on prostate 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 November 7, 1996, that is, the effective date of the law establishing presumption of service connection for prostate cancer. See 61 Fed. Reg. 57,586-87 (Nov. 7, 1996). Rather, the RO and the Board denied service connection for cause of death on the basis that the Veteran’s death certificate identified renal cell cancer as the cause of death, and such was not related to service, to include the Veteran’s presumed in-service exposure to an herbicide agent. See, e.g., Board (January 2007). The Board further finds that renal cancer cannot be reasonably construed as prostate cancer. Indeed, prior to receipt of the amended death certificate in January 2017, the Veteran had not filed a claim of service connection for prostate cancer and none of the lay or medical evidence of record at the time of the January 2007 Board decision indicated that prostate cancer caused the Veteran’s death. Thus, as 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 § 3.816(d)(2) does not apply. 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 January 2007 decision, the Board denied service connection for cause of the Veteran’s death. This decision became final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Following the January 2007 Board decision, the earliest claim of entitlement to service connection for cause of the Veteran’s death was received on May 18, 2012. Indeed, the December 2011 rating decision was not initiated by a claim, but rather by the RO. The appellant does not contend otherwise, and the evidence does not suggest receipt of an earlier claim between the issuance of the January 2007 Board decision and the May 18, 2012 claim. The effective date of the law establishing a presumption of service connection for prostate cancer is November 7, 1996. See 61 Fed. Reg. 57,586-87 (Nov. 7, 1996). If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, however, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Here, VA, on its own initiative, reviewed the appellant’s claim in a December 20, 2011, rating decision, and notified her of the determination in March 2012. As such, the earliest possible effective date for the grant of service connection for cause of the Veteran’s death is December 20, 2010. In sum, entitlement to service connection for cause of death effective December 20, 2010, one year prior to the claim being reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue establishing presumptive service connection for prostate cancer, is warranted. 2. The Board having determined that new and material evidence has not been received, reopening of the claim of entitlement to DIC benefits under 38 U.S.C. § 1318 is denied. The appellant previously submitted a claim of entitlement to entitlement to DIC benefits under 38 U.S.C. § 1318, which was denied in a January 2007 Board decision, which became final on the date stamped on the face of the decision. 38 U.S.C. § 7401; 38 C.F.R. § 20.1100. Following the January 2007 Board decision, the RO denied the claim in a December 2011 decision, which, as detailed above, has been in appellate status. Accordingly, the January 2007 Board decision is the last final decision on the issue. In its January 2007 decision, the Board denied entitlement to DIC benefits under 38 U.S.C. § 1318 on the basis that the Veteran was not rated 100 percent disabled due to a service-connected disorder for 10 years prior to his death, and given that a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was not in effect for 10 years prior to his death. At the time of the January 2007 decision, the Veteran’s combined rating at the time of his death in April 2002 was 100 percent. The Veteran had been granted an increase to 100 percent for his PTSD effective November 1, 1993. In light of these dates, it is self-evident that the Veteran was not entitled to a 100 percent rating for 10 years prior to his demise. Further, he was not entitled to a TDIU for the 10 years prior to his death. Since the January 2007 decision, the December 2011 RO decision posthumously granted service connection for ischemic heart disease and assigned an initial 30 percent rating effective May 1, 1989. While the increased rating presents new evidence, such is not material to the question of entitlement to DIC benefits under 38 U.S.C. § 1318 as the increased rating did not result an earlier rating for a 100 percent rating or a TDIU. As this evidence is not probative to any element that was a basis for the last disallowance, it does not raise any possibly of substantiating the appellant’s claim. Finally, the Board cannot consider the newly received evidence regarding prostate cancer in the context of its analysis of entitlement to DIC benefits under the provisions of 38U.S.C. §1318 because the Veteran was never granted service connection for prostate cancer. See Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009) (explaining claims for DIC benefits under 38 U.S.C. § 1318 based on “hypothetical entitlement” are barred by 38 C.F.R. § 3.22). In sum, the Board finds the appellant has not presented any new evidence that indicates the Veteran was receiving or entitled to receive compensation for service-connected disability that rated as totally disabling for at least 10 years immediately preceding his death or evidence related to any of the other provisions that give rise to entitlement to DIC benefits under 38 U.S.C. § 1318. Thus, the Board finds reopening of the issue of entitlement to DIC benefits under 38U.S.C. §1318 is not 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.