Citation Nr: A22025949 Decision Date: 12/21/22 Archive Date: 12/21/22 DOCKET NO. 220916-278057 DATE: December 21, 2022 ORDER An earlier effective date of October 2, 2020 for the award of service connection for hypothyroidism is granted. FINDINGS OF FACT 1. Effective January 1, 2021, hypothyroidism became eligible for presumptive service connection for veterans exposed to herbicides in the Republic of Vietnam. 2. On October 2, 2020, the Veteran submitted a VA Form 21-0966, Intent to File a Claim for Compensation. Thereafter, on June 28, 2021, he filed a formal claim seeking service connection for hypothyroidism as due to herbicide exposure in Vietnam. 3. The record does not demonstrate that the Veteran filed any other claims for service connection for hypothyroidism prior to October 2, 2020. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of October 2, 2020 for the award of service connection for hypothyroidism are met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.400, 3.816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1964 to August 1968, including service in the Republic of Vietnam. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for veterans dissatisfied with the Department of Veterans Affairs' (VA) decisions on their claims to seek review. As indicated above in the Findings of Fact section, the instant case began on October 2, 2020 when the Veteran submitted an intent to file a claim for compensation. Thereafter, in June 2021, he filed a formal claim seeking service connection for hypothyroidism as due to herbicide exposure in Vietnam. In October 2021, a VA Regional Office (RO) issued a rating decision granting service connection for hypothyroidism presumptively due to the Veteran's herbicide exposure in Vietnam. In granting service connection, the RO assigned an effective date of May 27, 2021. Then, on April 15, 2022, the Veteran filed a VA form 20-0996, Request for Higher-Level Review. On this form, the Veteran requested an effective date prior to May 27, 2021 for the award of service connection for hypothyroidism. About one month later, on May 12, 2022, a VA RO issued a Higher-Level Review rating decision awarding an earlier effective date of May 12, 2021 for the award of service connection for hypothyroidism. The Veteran disagreed with the May 12, 2022 Higher-Level Review rating decision and, on September 16, 2022, appealed it to the Board of Veterans' Appeals (Board) by filing a VA Form 10182, Notice of Disagreement (NOD. On his NOD, the Veteran selected the Evidence Submission review option. Based upon the Veteran's choices of Higher-Level Review and the Evidence Submission review option, the Board may consider (1) evidence associated with the claims file at the time of the notice of the rating decision on appeali.e., October 26, 2021; and (2) from September 16, 2022 to December 15, 2022i.e., the 90-day period following receipt of the NOD. See 38 C.F.R. §§ 3.2400, 3.2500, 3.2601, 20.303. Entitlement to an Effective Date Prior to May 12, 2021 In the instant appeal, the Veteran contends that the effective date for his award of service connection for hypothyroidism should be October 2, 2020, the date VA received his intent to file a claim for compensation. See September 2022 Representative Brief. After reviewing the evidence of record, the Board agrees. Accordingly, the Veteran's appeal is granted. In support of this determination, the Board first notes that, generally, the effective date for an award of compensation is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). Further, under 38 C.F.R. § 3.155(b), a claimant may file with VA a communication indicating a desire to file a claim for benefits. If VA then receives a completed claim within one year of receipt of an intent to file a claim, and benefits are thereafter awarded based upon this claim, the date VA received the claimant's intent to file is treated as the date of claim for effective date purposes. See 38 C.F.R. §§ 3.155(b), 3.400(o). In this case, the Veteran submitted an intent to file a claim for compensation on October 2, 2020. He then filed a completed claim form seeking service connection for hypothyroidism on June 28, 2021i.e., within one year of VA's receipt of his intent to file. Accordingly, at first blush, it appears that an effective date of October 2, 2020 is warranted pursuant to 38 C.F.R. § 3.155(b). However, in the October 2021 rating decision, the RO awarded service connection for hypothyroidism presumptively pursuant to 38 C.F.R. § 3.307(a)(6) and § 3.309(e). VA only recently determined that hypothyroidism was presumptively related to herbicide agent exposure. Specifically, section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the herbicide exposure presumptive list, including hypothyroidism. See 38 U.S.C. § 1116(a)(2)(K). The effective date for the addition of hypothyroidism as presumptively related to herbicide exposure was January 1, 2021. Thus, the award of service connection in this case was made pursuant to a liberalizing law, effective about three months after VA received the intent to file in October 2020. In general, when VA compensation benefits are awarded or increased pursuant to a liberalizing law approved by the Secretary or at the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). Thus, under 38 C.F.R. § 3.114, the earliest effective date permissible here would be January 1, 2021the effective date of the liberalizing law which added hypothyroidism as a disability presumptively associated with in-service exposure to herbicides. However, there is an exception to liberalizing law rule of 38 C.F.R. § 3.114(a) under 38 C.F.R. § 3.816. Specifically, VA has promulgated special rules for the effective dates for awards 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. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985 and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816(c)(1)-(2). 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). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide disease, including hypothyroidism. The Board finds 38 C.F.R. § 3.816(c)(2)(i) to be directly applicable in the instant case. Specifically, though the Veteran did not have an informal or formal claim for hypothyroidism (1) denied between September 25, 1985 and May 3, 1989; (2) pending before VA on May 3, 1989; or (3) received between May 3, 1989 and January 1, 2021 (the effective date of the applicable liberalizing law), he did have an intent to file received by VA between May 3, 1989 and January 1, 2021. Pursuant to 38 C.F.R. § 3.816(c)(2)(i), VA is to consider an intent to file a claim for compensation for a covered herbicide disability as a claim to determine whether the special Nehmer rules provided under 38 C.F.R. § 3.816 are applicable. Thus, treating the Veteran's October 2, 2020 intent to file as a claim under 38 C.F.R. § 3.816(c)(2)(i), the Board concludes that the special Nehmer rules provided under 38 C.F.R. § 3.816 are applicable here, resulting in the assignment of an earlier effective date of October 2, 2020 for the Veteran's award of service connection for hypothyroidism. As such, the Veteran's appeal is granted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.