Citation Nr: 21040315 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-12 809 DATE: July 3, 2021 ORDER An earlier effective date of September 5, 2001, for the grant of Dependency and Indemnity Compensation (DIC) for service connection for the Veteran's cause of death, is granted. FINDINGS OF FACT 1. On September 5, 2001, VA received the Appellant's original claim for DIC benefits. 2. Service treatment and personnel records associated with the claims file in 2012, 2015, and 2017 constitute relevant official service department records that existed and had not been associated with the claims file when the regional office (RO) initially decided the claim. CONCLUSION OF LAW The criteria for an earlier effective date of September 5, 2001, for the grant of DIC for service connection for the Veteran's cause of death, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to August 1968. He died in April 2000. The Appellant is his surviving spouse. In January 2020, the Board denied the claim for an earlier effective date for DIC for service connection for the Veteran's cause of death. The Appellant requested reconsideration of this decision. In April 2020, the Board denied the Motion for Reconsideration. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an March 2021 order, the Court granted a Joint Motion for Remand (JMR), vacated the Board's decision and remanded the claim for further proceedings consistent with the JMR. As a preliminary matter, the Board notes that there is an outstanding April 2021 motion to advance the case on the docket (AOD) based on serious illness. However, there was no documentation associated with this AOD motion. An AOD motion may be granted if the appellant is "seriously ill." 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). At this time, there is insufficient evidence to demonstrate serious illness. Accordingly, the AOD motion is denied at this time. Id. In accordance with this ruling, the appeal will remain in its current docket number order. In any case, the Board is now addressing the case. Entitlement to an earlier effective date for the grant of DIC for service connection for the Veteran's cause of death In the JMR, the parties agreed that the Board provided inadequate reasons or bases for its decision to deny an earlier effective date for DIC benefits because it did not discuss the potential applicability of 38 C.F.R. § 3.156(c) as raised by the record. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The parties agreed that VA had received official service department records that existed and had not been associated with the claims file when VA first decided the claim in October 2001. As such, the January 2020 Board decision was vacated, and the issue remanded to address the applicability of 38 C.F.R. § 3.156(c). See Shipley v. Shinseki, 24 Vet. App. 458, 464 (2011) (remanding for the Board to make findings pertinent to § 3.156(c) in the first instance). The Appellant asserts that a 2001 effective date for DIC benefits is warranted, which was the year she initially filed a claim for this benefit. In a June 2021 appellate brief, the Veteran's representative repeated JMR findings and requested that the Board discuss the provisions of 38 C.F.R. § 3.156(c). The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation and DIC are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of DIC benefits based on a claim reopened after final disallowance will be the date the claim was received, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Further, where new and material evidence, other than service department records, is received after a final disallowance, the effective date will be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). Here, on September 5, 2001, the Appellant filed an original application for DIC benefits claiming that the cause of the Veteran's death was due to service. In an October 2001 letter, the Appellant was informed that the RO denied the DIC claim. Thereafter, no further communication regarding the claim was received from the Appellant until a new application filed in August 2013. The Appellant filed a new DIC claim in August 2013 and submitted evidence indicating her disagreement with the prior final denial and belief that she is entitled to DIC based on service connection for the cause of the Veteran's death. In a March 2014 rating decision, the RO denied service connection for cause of death. The Appellant timely appealed the denial. In an August 2015 Board decision, the previously denied claim for DIC for service connection for the cause of the Veteran's death was reopened based on new and material evidence received since the October 2001 denial. The claim was considered on the merits and ultimately granted in a September 2018 Board decision. A December 2018 rating decision effectuated the grant with an effective date of August 14, 2013, the date the claim to reopen was received. This decision was appealed and resulted in the January 2020 Board decision noted above. Generally, except as otherwise provided, the effective date of an evaluation and an award of DIC benefits based on a claim reopened after final disallowance will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. As the Appellant submitted the claim to reopen entitlement to DIC benefits on August 14, 2013, the earliest effective date would generally be the current effective date for DIC benefits, August 14, 2013. An earlier effective date may, however, also be retroactively warranted under 38 C.F.R. § 3.156(c). Under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if 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, notwithstanding paragraph (a) of the same section (defining new and material evidence). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. To be relevant, the newly associated service records "must address a dispositive issue and therefore, affect the outcome of the case." Kisor v. Wilkie, 969 F.3d 1333, 1338-39 (Fed. Cir. 2020). Put differently, the records "must speak to the basis for the VA's prior decision." Id. at 1340. Duplicative records or records directed to an undisputed fact would not speak to the basis for the VA's prior decision. Id. If an award is made based all or in part on the newly associated service records, the effective date is the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(1)(iii)(3). Based on the foregoing, the Board finds that the provisions of section 3.156(c) are for application and reconsideration is warranted. VA has an obligation to obtain service treatment records which are known to be in existence. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011) (stating that a Veteran is not precluded from seeking an earlier effective date on grounds that he failed to cooperate fully with VA's requests for information, where VA failed to locate records). At the time of the October 2001 initial denial, service treatment (STRs) and personnel records (SPRs) were not associated with the claims file. A review of the claims file shows that STRs and SPRs were initially associated with the file in 2012 and 2015. See November 2013 Deferred Rating Decision. Pursuant to an August 2017 Board remand, additional SPRs were obtained in October 2017. In a September 2018 decision, the Board granted service connection for the cause of the Veteran's death, in part, based on an August 2018 independent medical opinion, that considered STRs and SPRs in formulating the requested opinion. In the August 2018 independent medical opinion, a specialist in environmental health noted review of the entire claims file and opined that it was at least as likely as not that the Veteran's cause of death, or leukemia (AML), was due to his in-service levels of exposure to Benzene. In arriving at this conclusion, the physician noted comprehensive consideration of every aspect of the Veteran's actual exposure as part of his military occupational specialty (MOS) as a heavy truck driver during active service, and calculated actual exposure to Benzene as a function of his MOS. The physician referenced SPRs documenting the Veteran's transportation company assignment and clinical findings contained in STRs. The physician concluded that exposure reached the level and time length to have as likely as not caused the Veteran's development of AML. In a September 2018 decision, the Board acknowledged VA medical opinions against the claim, but ultimately found that the August 2018 independent medical opinion placed the evidence at least in equipoise, and granted the Appellant's claim for entitlement to service connection for the cause of the Veteran's death. Under these circumstances, the Board finds that the exception noted in 38 C.F.R. § 3.156(c)(2), that VA could not have obtained service department records when it decided the claim because the records did not exist, does not apply. Accordingly, September 5, 2001, is considered as the date of claim per 38 C.F.R. § 3.156(c)(3). (Continued on the next page) Thus, the proper effective date for the award of DIC for service connection for the Veteran's cause of death is September 5, 2001, the date of receipt of the Appellant's first DIC claim. 38 C.F.R. § 3.159(c); Mayhue, 24 Vet. App. at 28. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Baker, 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.