Elizabeth H. Bonner v. R. James Nicholson

19 Vet. App. 188, 2005 U.S. Vet. App. LEXIS 408, 2005 WL 1420745
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 17, 2005
Docket02-742
StatusPublished
Cited by11 cases

This text of 19 Vet. App. 188 (Elizabeth H. Bonner v. R. James Nicholson) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elizabeth H. Bonner v. R. James Nicholson, 19 Vet. App. 188, 2005 U.S. Vet. App. LEXIS 408, 2005 WL 1420745 (Cal. 2005).

Opinions

GREEN, Judge, filed the opinion of the court. HAGEL, Judge, filed a concurring opinion.

GREENE, Judge:

Mrs. Elizabeth H. Bonner, widow of veteran Emmet P. Bonner, appeals, through counsel, a September 27, 2001, Board of Veterans’ Appeals (Board) decision that denied an effective date earlier than November 1994 for an award of dependency and indemnity compensation (DIC). Record (R.) at 1-35. Mrs. Bonner argues that under 38 U.S.C. § 5110(g), 38 C.F.R. § 3.313 (2004), and VA Office of General Counsel opinions she is entitled to an effective date of August 1975 for her DIC benefits. Appellant’s Brief (Br.) at 4-10. She further maintains that the Board erred by ruling that her original service-connection claim in 1975 did not include a claim for non-Hodgkin’s lymphoma. Id. The Secretary contends that the Board decision should be affirmed in that the Board had a plausible basis in the record for denying an effective date earlier than November 1, 1994. He also asserts that the Board’s decision was supported by an adequate statement of reasons or bases. Secretary’s Br. at 6-12. For the reasons that follow, the Board decision will be affirmed.

I. FACTS

Veteran Emmett P. Bonner served honorably in the U.S. Navy from June 1939 to [190]*190April 1972, including service in World War II, the Korean Conflict, and Vietnam. R. at 38. In September 1972, he was awarded VA service connection for a hernia and hearing loss. R. at 189-90, 292. Mr. Bonner died on August 1, 1975. R. at 281. In September 1975, Mrs. Bonner filed an application for DIC and claimed that her husband died from cancer. R. at 276-79. Mr. Bonner’s death certificate listed Hodgkin’s disease as the cause of his death. R. at 281. An autopsy report from the National Naval Medical Center also noted that Mr. Bonner’s death was caused by an “undifferentiated tumor, which was felt to be most consistent with Hodgkin’s disease.” R. at 288-89. A VA regional office (RO) denied her claim in February 1976 after finding that Mr. Bonner’s Hodgkin’s disease developed in January 1975, three years after his retirement from the Navy, and that in his service medical records there was no evidence of his having symptoms of that condition while in service. R. at 292. She did not appeal that decision. See R. at 1-744.

In October 1990, the Secretary promulgated VA regulation 38 C.F.R. § 3.313 (1991), which provided, as it does now, “[s]ervice in Vietnam during the Vietnam Era together with the development of non-Hodgkin’s lymphoma manifested subsequent to such service is sufficient to establish service connection for that disease.” 38 C.F.R. § 3.313(b). The effective date for this provision was August 5, 1964, the beginning date of the Vietnam era. See McCay v. Brown, 9 Vet.App. 183, 188 (1996); see also 55 Fed.Reg. 43, 123 (Oct. 26, 1990). In February 1994, the VA General Counsel formally opined:

An effective date for service connection of non-Hodgkin’s lymphoma under 38 C.F.R. § 3.313 may generally be based on the date of receipt by the Department of Veterans Affairs of an original claim for that benefit filed on or after August 5, 1964, regardless of whether the claim had previously been denied, if the claimant was otherwise eligible on the date of claim.

VA Gen. Coun. Prec. 5-1994 (Feb. 18, 1994) [hereinafter G.C. Prec. 5-1994] (emphasis added). Also in February 1994, VA issued a regulation that stated, as it does now: “If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected ... even though there is no record of such disease during service.” 38 C.F.R. § 3.309(e) (1994). Hodgkin’s disease and non-Hodgkin’s lymphoma were listed as diseases presumed service connected under this regulation. Id. The effective date of that liberalizing regulation was February 3, 1994. 38 C.F.R. § 3.309(e); 59 Fed.Reg. 5106 (Feb. 3,1994).

In November 1995, Mrs. Bonner informed the RO that a National Institutes of Health (NIH) oncologist had reviewed tissue samples and slides from Mr. Bonner’s autopsy and had reviewed Mr. Bonner’s service medical records. R. at 309. The oncologist diagnosed Mr. Bonner’s tumor as “simulating Hodgkin’s disease.” R. at 302. The examiner also noted that “Im-munohistochemical studies favor[ed] the diagnosis of non-Hodgkin’s lymphoma.” R. at 303. Mrs. Bonner asserted to the RO that, based upon this evidence, the earlier denial of her DIC claim was erroneous and that under 38 C.F.R. § 3.313, she was entitled to DIC effective in 1975, the year that she originally filed her DIC claim. Id. The RO considered the medical evidence and the February 1994 change in the law regarding presumptions of service connection for Hodgkin’s disease and non-Hodgkin’s lymphoma, and in a November 1995 decision stated:

[191]*191The veteran’s death certificate showed the primary cause of death as Hodgkin’s disease. No other conditions were shown as contributing to the cause of death. The letter from [Mrs. Bonner] indicated that the diagnosis of Hodgkin’s disease by the National Naval Medical Center in Bethesda, [Maryland,] was in error. Mrs. Bonner indicated that a further study by the [NIH] indicated that in fact the disease was non-Hodgkin’s lymphoma. The veteran served in the Republic of Vietnam during the Vietnam era, [and] is presumed to have been exposed to a herbicide containing dioxin (Agent Orange) while in Vietnam. Both Hodgkin’s disease and non-Hodgkin’s lymphoma may be caused by exposure to a herbicide containing dioxin. Therefore, service connection for cause of death is established.

R. at 312. The RO construed Mrs. Bonner’s inquiries on this matter as an informal claim for review and found that the evidence showed Hodgkin’s disease was the cause of Mr. Bonner’s death. R. at 312-13. Mrs. Bonner was awarded DIC effective November 1995, the date of her informal claim for review. Id. Mrs. Bonner disagreed with the effective date, and, in a July 1996 Statement of the Case (SOC), the RO, under 38 C.F.R. § 3.114 (1995) (if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior, to the date of receipt of such request), assigned an earlier effective date of November 1994. R. at 318-22. The RO ruled that Mrs. Bonner’s reopened claim was filed more than a year after the liberalizing law authorizing a presumption of service connection for Hodgkin’s disease based on herbicide exposure was promulgated, and that, therefore, under 3

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Bluebook (online)
19 Vet. App. 188, 2005 U.S. Vet. App. LEXIS 408, 2005 WL 1420745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elizabeth-h-bonner-v-r-james-nicholson-cavc-2005.