Citation Nr: 9904269 Decision Date: 02/17/99 Archive Date: 02/24/99 DOCKET NO. 95-42 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an earlier effective date for the award of Dependency and Indemnity Compensation (DIC) benefits to the surviving spouse. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The veteran honorably retired from the United States Army in September 1970 with over twenty years of active duty service. He died on July [redacted], 1986. The appellant is the widow of the deceased veteran. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 1994 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The veteran died on July [redacted], 1986, at the age of 57; the cause of the death was reported as due to lung cancer. 2. The appellant filed a claim for DIC benefits in August 1986. Although she did not specify the disease or injury, she alleged that her husband's death was due to service. 3. Service connection for the cause of the veteran's death was denied by rating decision in December 1986; the appellant did not appeal the denial of this claim within one year of the notification thereof. 4. The appellant reopened her claim for DIC benefits in July 1990. She claimed that the veteran's death was due to Agent Orange exposure during his tour of duty in Vietnam. 5. Adjudication of her reopened claim was held in abeyance pending publication of revised regulations dealing with Agent Orange presumptive diseases. She was notified of this action by letter dated September 5, 1990. 6. Pursuant to the Agent Orange Act of 1991, 38 C.F.R. §§ 3.307(a), 3.309(e) were amended in June 1994 to allow service connection for veterans who were presumed to have been exposed to herbicide agents in Vietnam and developed one of the specified diseases listed thereunder, including lung cancer. 7. By rating decision in October 1994, the RO granted service connection for the cause of the veteran's death due to lung cancer based on presumptive Agent Orange exposure in service under 38 C.F.R. § 3.309(e). An award letter notified the appellant that her DIC benefits were payable effective from August 1, 1990, the first day of the month after receipt of her reopened claim for DIC benefits. 8. The appellant qualifies as a member of the class in Nehmer, et al. v. United States Veterans Administration, et al., 712 F. Supp. 1404 (N.D. Cal. 1989), having filed a claim in July 1990 after the date of the court's decision in Nehmer and before issuance of new regulations in June 1994. 9. The appellant's DIC claim was pending at the time the RO issued its rating decision of October 1994 granting these benefits. CONCLUSIONS OF LAW 1. An effective date earlier than July 30, 1990, is not warranted for the grant of service connection for the cause of the veteran's death due to lung cancer based on presumed in-service exposure to Agent Orange. Nehmer, et al. v. United States Veterans Administration, et al., C.A. No. C-86- 6160 (TEH) (N.D. Cal. May 20, 1991) (final stipulation and order); 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(c)(2) (1998). 2. Payment of DIC earlier than August 1, 1990, as a result of the grant of service connection for the cause of the veteran's death is not warranted. 38 U.S.C.A. § 5111 (West 1991); 38 C.F.R. § 3.31 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background The pertinent facts are not in dispute and may be briefly set forth as follows: The veteran served on active duty in the United States Army for over twenty years, retiring in September 1970. His military service included a tour of duty in Vietnam during the Vietnam wartime era. During the veteran's lifetime, service connection was in effect for arthritis of the cervical spine and hemorrhoids. He died on July [redacted], 1986, at the age of 57. The death certificate indicated that the cause of death was pulmonary hemorrhage with infarction due to lung cancer. Following her husband's death, the appellant filed a claim for DIC benefits in August 1986. Although she did not specify the disease or injury, she alleged that her husband's death was due to service. A rating decision in December 1986 denied her claim on the basis that service connection for the cause of the veteran's death was not established. Notice of the rating decision was sent to the appellant by letter dated December 16, 1986. No further action was taken by the appellant with regard to a claim for DIC benefits until July 1990 when she filed a "Statement in Support of Claim," VA Form 21-4138, claiming that her husband's death was due to exposure to herbicide agents (Agent Orange) during service. She stated, "[m]y husband['s] death was due to hemorrhage, but due to cancer that he had due to his Vietnam service[.]" The RO received her Form 21-4138 on July 30, 1990. In October 1994, the RO issued a rating decision granting the appellant entitlement to DIC benefits on the basis that the veteran's death caused by lung cancer was due or the result of presumed in-service exposure to herbicide agents under 38 C.F.R. § 3.309(e). The award of DIC was granted pursuant to a liberalizing law - the Agent Orange Act of 1991, Public Law 102-4. In June 1994, VA implemented Public Law 102-4 by publishing final rules, see 59 Fed. Reg. 29723-24, which included lung cancer as one of the specified "presumptive" diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e). The effective date of the regulation adding lung cancer to the list of presumptive Agent Orange diseases was June 6, 1994. Because the appellant had a claim pending at that time, payment of DIC was made effective from August 1, 1990, the first day of the month after receipt of her reopened claim for effective date purposes. The appellant filed a notice of disagreement as to the effective date issue and this matter has been perfected on appeal to the Board. In July 1996, the appellant appeared at a hearing held at the RO at which time she provided sworn testimony regarding the merits of her claim. It is essentially asserted that the provisions under Public Law 102-4 were to be made retroactive, and service-connected death compensation should be awarded from the date she originally applied for these benefits since the medical evidence established a diagnosis of lung cancer at that time. However, for the reasons discussed below, the Board is unable to assign an effective date earlier than August 1, 1990. Analysis Generally, the effective date of an award of DIC which is based on an original or reopened claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(c)(2) (1998). Once an effective date is established, actual payment of benefits may not begin until the first day of the next calendar month. 38 U.S.C.A. § 5111 (West 1991); 38 C.F.R. § 3.31 (1998). However, section 5110(g) provides an exception to section 5110(a), which may be paraphrased as follows: Where DIC is awarded pursuant to any congressional legislation or VA administrative issuance, the effective date of the award may be no earlier than the effective date of the legislation or administrative issuance. Moreover, no such award may be retroactive for more than one year from the date of application or the date of the administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g) (West 1991). The regulation implementing section 5110(g) provides that if a claim is reviewed at the request of the claimant more than one year after the effective date of a change in law or VA issuance, 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) (1998). As mentioned above, final rules providing for presumptive service connection of respiratory cancers as associated with exposure to herbicide agents used during Vietnam were promulgated on June 9, 1994. 59 Fed. Reg. 29723-24 (1994). Pursuant to those rules, the RO established service connection for the cause of the veteran's death and awarded DIC benefits effective from August 1, 1990, the first day of the month after receipt of her reopened claim for effective date purposes. Until this regulation was finalized, there was no legal basis for granting service-connected compensation benefits for this disease based on service in Vietnam and presumptive Agent Orange exposure. Where there is a liberalizing VA issue, as is clearly the case in this situation (service connection for lung cancer based on presumed exposure to Agent Orange was not available until the revised regulations were published), the criteria stated above govern whether a retroactive effective date may be assigned. Pursuant to these criteria, while VA may assign an effective date one year prior to the filing of the claim in some circumstances, the effective date of the statute or administrative issue on which entitlement to benefits is based determines the outer limit of the period for which an award of retroactive benefits may be made. See VAOPGCPREC 5- 94, 59 Fed. Reg. 27803 (1994); see also 38 C.F.R. § 3.114(a). The provisions of this regulation are applicable to original and reopened claims as well as claims for increase. Id. These provisions are only factually applicable in cases where an eligible claimant filed a claim at some point in time after passage of the liberalizing law and where entitlement can be shown from the effective date of the change or liberalization forward in time to the date of the claim. In such cases, the claimant would be entitled to a maximum one- year retroactive effective date measured from the date of receipt of the claim. The intent of this retroactive provision was to compensate claimants who might have been unaware or less diligent in filing a claim for benefits that they were otherwise entitled to by enactment of liberalizing legislation. See McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997) (agreeing with the Secretary, the Federal Circuit stated that the legislative history surrounding the enactment of section 5110(g) was to allow the VA to identify potential beneficiaries and apply the provisions of liberalized laws without necessity of a potential beneficiary filing post- enactment claims). However, these retroactive provisions are not applicable to the facts in this case, and would not serve to provide an earlier effective date, because the appellant was awarded DIC effective from the date her claim was filed for these benefits in July 1990, or prior to the June 1994 effective date of the liberalizing VA issue promulgated pursuant to the authority granted the Secretary by Public Law 102-4. For reasons set forth below, the matter of the effective date of service connection for the cause of the veteran's death due to a presumptive Agent Orange disease (lung cancer) is not governed by the above-cited statute, 38 U.S.C.A. § 5110(g), and regulation, 38 C.F.R. § 3.114, pertaining to awards of compensation pursuant to liberalizing Acts or VA administrative issues. Rather, the effective date is governed by Nehmer, et al. v. United States Veterans Administration, et al., C.A. No. C-86-6160 (TEH) (N.D. Cal. May 20, 1991) (final stipulation and order). In February 1987, a group of Vietnam veterans and survivors of veterans filed suit in U.S. District Court alleging that the regulations promulgated by VA to implement the Veterans' Dioxin and Radiation Exposure Compensation Standards Act [hereinafter Dioxin Act] were invalid. Nehmer, et al. v. United States Veterans Administration, et al., 712 F. Supp. 1404 (N.D. Cal. 1989). The district court certified a class of plaintiffs: "The class consists of all current or former service members (or their survivors) who are eligible to apply for benefits based on dioxin exposure or who have already applied and been denied claims for benefits based on dioxin exposure." Nehmer, et al., 712 F. Supp. at 1409. The appellant qualifies as a member of the class, having filed a claim in July 1990 after the date of the court's decision in Nehmer and before issuance of the new regulations in June 1994. The District Court voided "all benefit decisions made under the [sic] 38 C.F.R. § 311[sic](d)." Id. VA promulgated that regulation, actually 38 C.F.R. § 3.311a(d), on August 26, 1985. 50 Fed. Reg. 34458 (1985). In May 1991, plaintiffs in Nehmer, et al., and VA entered into a stipulation providing rules governing the effective dates of entitlement to service connection for certain groups of VA claimants. Nehmer, et al. v. United States Veterans Administration, et al., C.A. No. C-86-6160 (TEH) (N.D. Cal. May 20, 1991) (final stipulation and order) [hereinafter Nehmer Stipulation]: As soon as a final rule is issued service connecting, based on dioxin exposure, . . . any other diseases which may be service connected in the future pursuant to the Agent Orange Act of 1991, 38 U.S.C. § 316(b) [now 38 U.S.C.A. § 1116(b)], the VA shall promptly thereafter . . . adjudicate all similar claims filed subsequent to the Court's May 3, 1989 Order . . . . For any claim for any such disease which was not filed until after May 3, 1989, the effective date for beginning disability compensation or DIC will be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later. Nehmer Stipulation at 3, 5 (bracketed material supplied). The appellant's claim for DIC benefits based on the cause of the veteran's death due to lung cancer due to exposure to Agent Orange was filed in July 1990 and thus, it was filed after the May 3, 1989, Order in Nehmer. Her claim was subsequently granted under regulations adopted pursuant to the Agent Orange Act of 1991. In short, the Nehmer Stipulation governs the effective date of the award of service connection for the cause of this veteran's death. As such, application of the Nehmer Stipulation to this case yields the same result as applying the general rule regarding effective dates of awards of service connection pursuant to 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400, i.e., the effective date of the award of service connection for the cause of the veteran's death shall be the date of receipt of the claim or the date entitlement arose, whichever is later. Therefore, the proper effective date is July 30, 1990, the date of receipt of her reopened claim for DIC based on an Agent Orange presumptive disease. The appellant's argument that she filed her original claim in 1986 and that that claim should govern the effective date lacks merit. Her original claim was not made pursuant to the regulations invalidated by the court in Nehmer (published in August 1985), and the appellant at no time asserted entitlement on the basis of exposure to Agent Orange in connection with that claim. The Board has carefully and compassionately considered the appellant's forthright testimony at her hearing and acknowledges her contention that, when the veteran died in July 1986, she did not allege that his death was due to Agent Orange exposure at that time because it had not yet been determined what, if any, disorders were related to in-service exposure to toxic herbicides such as Agent Orange. Statutes and regulations specifically providing for service connection of disability or death caused by lung cancer due to herbicide exposure did not exist in 1986 or for years thereafter, so it is understandable that the appellant did not file a claim at that time. However, to whatever extent she may believe that VA employees either failed to provide correct or timely information or provided erroneous advice as to her potential entitlement, the Court of Veterans Appeals has held that benefits cannot be awarded based upon such circumstances. See e.g. McTighe v. Brown, 7 Vet. App. 29, 30 (1994). The Board is bound by the law and the regulations of the Department under title 38 of the United States Code, and, as discussed above, the statute and regulation applicable to this case do not permit the Board to grant an effective date one year earlier than the date of claim. 38 U.S.C.A. § 7104(c) (West 1991). Further, while the appellant could have established a claim for DIC prior to implementation of Public Law 102-4, under 38 C.F.R. § 3.303, she did not submit medical evidence showing the cause of the veteran's death, i.e., lung cancer was due to exposure to Agent Orange during active service or any other incident or event of service, either in connection with her original DIC claim filed in 1986 or at some point in time prior to receipt of her reopened claim in July 1990. Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, as a claim for DIC benefits may be brought at any time, and the amount of the award is determined in part by the effective-date provisions of 38 U.S.C. § 5110 which provides that DIC benefits generally may not be paid for a period prior to the date of application therefore, equitable tolling is not necessary to preserve a claimant's right to receive DIC benefits. Thus, the doctrine of equitable tolling is not applicable to the facts in this case. Where the law and not the evidence is dispositive of the issue before the Board, the claim must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Walker v. Brown, 8 Vet. App. 356 (1995) (in statutory interpretation, if the plain meaning of a statute is discernible, that plain meaning must be given effect) and Tallman v. Brown, 7 Vet. App. 453 (1995) (regulatory provisions entitled to deference is not in conflict with statute). Accordingly, the Board concludes that the effective date for purposes of payment of DIC is August 1, 1990. ORDER An effective date earlier than August 1, 1990, for purposes of payment of DIC is denied. A. BRYANT Member, Board of Veterans' Appeals Department of Veterans Affairs