Maria E. Garza v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
MARIA E. GARZA,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7073
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-0277, Judge Donald L. Ivers.
__________________________
Decided: May 14, 2012
__________________________
M ARIA E. G ARZA, of Hebbronville, Texas, pro se.
ANUJ VOHRA, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. D ELERY, Acting
Assistant Attorney General, JEANNE D AVIDSON , Director,
TODD M. H UGHES , Deputy Director. Of counsel on the
brief was DAVID J. BARRANS , Deputy Assistant Attorney

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GARZA v. SHINSEKI 2
General, United States Department of Veterans Affairs, of
Washington, DC.
__________________________
Before RADER, Chief Judge, LINN and O’MALLEY, Cir-
cuit Judges.
PER C URIAM.
Maria E. Garza (“Garza”), the surviving spouse of de-
ceased veteran Armando E. Garza (“Veteran”), appeals
the decision of the United States Court of Appeals for
Veterans Claims (“Veterans Court”) in Garza v. Shinseki,
No. 11-0277, slip op. (Vet. App. Jan. 12, 2012) (“Opinion”),
affirming a decision of the Board of Veterans’ Appeals
(“Board”), denying her claim of entitlement to dependency
and indemnity compensation benefits. Because the
Veteran did not and could not satisfy the requirements of
38 U.S.C. § 1318, this court affirms.
I. BACKGROUND
The Veteran served on active duty from June 1968 to
June 1972, including in Vietnam from 1969 to 1970.
Beginning on September 20, 2002, the Veteran applied to
the Department of Veterans Affairs (“Agency”) for benefits
based on various service-connected disabilities. In Sep-
tember 2003, the Agency’s Regional Office (“RO”) granted
the Veteran service connection with an aggregate disabil-
ity rating of 40%. In September 2004, the RO granted the
Veteran’s request for additional benefits and increased his
aggregate disability rating to 60%, effective September
20, 2002. In December 2004, the RO denied the Veteran’s
request for service connection based on ischemic heart
disease. The Veteran did not appeal that decision, which
then became final. In 2006, the RO granted the Veteran
service connection for other disabilities and increased his
total disability rating to 90%, effective May 31, 2006.

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GARZA v. SHINSEKI 3
The Veteran filed a notice of disagreement with the
90% rating, and in August 2007, the RO granted the
Veteran a total disability rating due to individual unem-
ployability (“TDIU”), effective May 31, 2006. The Veteran
filed another notice of disagreement, this time arguing for
an earlier effective date. In January 2008, while that
notice of disagreement was pending, the Veteran died
from liver cancer.
In January 2008, Garza applied to the RO for depend-
ency and indemnity compensation benefits under 38
U.S.C. § 1318. In August 2008, the RO denied her claim.
Garza appealed to the Board, and the Board affirmed on
the ground that “the Veteran did not meet the durational
requirement for a total disability rating . . . under 38
U.S.C. § 1318.” Garza then appealed to the Veterans
Court, which, in a single-judge opinion, affirmed the
Board on the same ground. Opinion at 4. The Veterans
Court also noted that Garza alleged “in her reply brief
that the Board erred in not addressing the recent addition
of ischemic heart disease to the list of diseases for which
presumptive service connection may be established as
secondary to exposure to herbicides.” Id. at 5. On that
issue, the Veterans Court held that it did not possess
jurisdiction to readjudicate the RO’s December 2004
decision denying service connection for ischemic heart
disease when that issue had not been first considered
below by the Board. Id. The Veterans Court granted
Garza’s motion for a panel decision, found no error in the
Veterans Court’s single-judge opinion, and held that the
single judge opinion “remains the decision of the [Veter-
ans] Court.” Garza v. Shinseki, No. 2012-7073, slip op. at
2 (Vet. App. Jan. 12, 2012). Garza timely appealed, and
this court has jurisdiction pursuant to 38 U.S.C.
§ 7292(a)-(e).

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GARZA v. SHINSEKI 4
II. ANALYSIS
This court’s review of appeals from the Veterans
Court is limited to “relevant questions of law, including
constitutional and statutory provisions.” 38 U.S.C.
§ 7292(d). This court will “set aside any regulation or any
interpretation thereof (other than a determination as to a
factual matter) that was relied upon in the decision of the
[Veterans Court]” only if this court finds it to be “(A)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law; (B) contrary to [the]
[C]onstitution[] . . . ; (C) in excess of statutory jurisdiction,
authority, or limitations . . . ; or (D) without observance of
procedure required by law.” Id.
At issue here are two questions: (1) whether the Vet-
erans Court properly interpreted its jurisdictional author-
ity in declining to reconsider the Veteran’s earlier claim
for service connection for ischemic heart disease; and (2) if
the Agency were to readjudicate that issue and award the
Veteran retroactive service connection for ischemic heart
disease, whether Garza could satisfy the statutory dur-
ational requirements for benefits under 38 U.S.C. § 1318.
Section 1318 provides that “[t]he Secretary shall pay
benefits under this chapter to the surviving spouse . . . of
a deceased veteran described in subsection (b) of this
section in the same manner as if the veteran’s death were
service connected.” § 1318(a). Subsection (b) defines a
deceased veteran, in relevant part, as:
a veteran who dies . . . and who was in receipt of
or entitled to receive . . . compensation at the time
of death for a service-connected disability rated
totally disabling if—

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GARZA v. SHINSEKI 5
(1) the disability was continually rated totally dis-
abling for a period of 10 or more years immedi-
ately preceding death; [or]
(2) the disability was continuously rated totally
disabling for a period of not less than five years
from the date of such veteran’s discharge . . . .
Garza argues that the Board erred in determining
that her deceased spouse did not meet the requirements
of subsections (b)(1) or (b)(2) to entitle her to benefits
under subsection (a). Garza appears to contend that the
Veterans Court failed to consider arguments regarding
the Veteran’s entitlement to service connection for
ischemic heart disease based on a new Agency regulation,
38 C.F.R. § 3.309(e) (effective August 31, 2010), which
establishes a presumptive service connection for ischemic
heart disease based on herbicide exposure in Vietnam
during the relevant time frame. See Diseases Associated
with Exposure to Certain Herbicide Agents, 75 Fed. Reg.
53,202-01 (Dep’t of Veterans Affairs Aug. 31, 2010) (“Dis-
eases Associated with Herbicides”).
According to Garza, under Nehmer v. United States
Veterans’ Administration, 32 F. Supp. 2d 1175 (N.D. Cal.
1999), aff’d, 284 F.3d 1158 (9th Cir. 2002), a disease that
is presumptively service-connected based on herbicide
exposure in Vietnam receives an effective date for service
connection retroactive to the date the Agency received the
veteran’s claim, see 38 C.F.R. § 3.816(c) (regulation im-
plementing Nehmer), instead of the date that the Agency
regulation creating the presumption went into effect, see
38 U.S.C. § 5110(g) (“[W]here compensation . . . is
awarded . . . pursuant to any Act or administrative issue,
the effective date of such award or increase . . . shall not
be earlier than the effective date of the Act or administra-
tive issue.”). Garza appears to contend that if the Agency
had readjudicated the Veteran’s previously denied claim

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GARZA v. SHINSEKI 6
for service connection based on ischemic heart disease,
the Veteran could then meet the durational total disabil-
ity requirements for dependency and indemnity contribu-
tion benefits under § 1318(b).
The Agency counters that, while Garza may be enti-
tled to service connection for ischemic heart disease based
on its August 31, 2010, regulation, Agency Br. at 13 n.5
(“After issuing the [August 31,] 2010 regulations, [the
Agency] began readjudicating, as required by Nehmer
court orders, more than 89,000 previously denied claims
by Vietnam veterans or their survivors for service connec-
tion for heart disease, Parkinson’s disease, or b-cell leu-
kemias.”), the issue of service connection for ischemic
heart disease was never readjudicated by the Agency or
considered the Board. Thus, the Agency asserts that the
issue was not properly before the Veterans Court in the
first instance. Moreover, the Agency contends that even if
it were to readjudicate the Veteran’s claim, and retroac-
tively award the Veteran a disability rating based on
ischemic heart disease pursuant to Nehmer, the earliest
effective date that the Veteran could possibly be entitled
to TDIU is September 20, 2002, the date of his first claim.
The Agency notes that that date is less than six years
prior to his death and contends that it does not satisfy
§ 1318(b)’s total disability durational requirements.
The Agency is correct. Neither the RO nor the Board
addressed the Veteran’s previously denied claim for
service connection for ischemic heart disease when decid-
ing Garza’s claim for benefits under § 1318(b). Opinion at
5. Because the Board did not address that claim, the
Veterans Court correctly held that it lacked jurisdiction to
decide it in the first instance. See Ledford v. West, 136
F.3d 776, 779 (Fed. Cir. 1998) (“[T]he [Veterans C]ourt
has the ‘power to affirm, modify, or reverse a decision of
the Board . . . .’ Thus, the [Veterans C]ourt’s jurisdiction

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GARZA v. SHINSEKI 7
is premised on and defined by the Board’s decision con-
cerning the matter being appealed.” (citing 38 U.S.C.
§§ 7252(a) and (b))).
Moreover, even if the Agency were to readjudicate the
Veteran’s previously denied claim and retroactively award
the Veteran an earlier total disability rating based on
ischemic heart disease, the Veteran still could not satisfy
§ 1318(b)’s total disability durational requirements.
Under 38 U.S.C. § 5110(g), “where compensation . . . is
awarded . . . pursuant to any Act or administrative issue
[here 38 C.F.R. § 3.309(e), establishing presumptive
service connection for ischemic heart disease], the effec-
tive date of such award . . . shall not be earlier than the
effective date of the Act or administrative issue [here,
August 31, 2010].” Nehmer created a “limited exception
to [§ 5110(g)] for a claim where a Nehmer class member
filed a claim before the new rule [establishing the pre-
sumption] took effect.” Diseases Associated with Herbi-
cides at 53,203; see also Nehmer, 284 F.3d at 1161-62.
Although ischemic heart disease is not specifically defined
as a “covered herbicide disease” in 38 C.F.R. § 3.816(b)(2)
(implementing Nehmer), the Federal Regulations imple-
menting 38 C.F.R. § 3.309(e) imply that the effective date
provisions of 38 C.F.R. §§ 3.816(c) and (d) (also imple-
menting Nehmer) would pertain to any new condition
later included in a “final regulation adding the new condi-
tion to the list of diseases presumptively associated with
herbicide exposure in Vietnam.” Diseases Associated with
Herbicides at 53,203. Thus, even assuming the Nehmer
exception to § 5110(g) would apply in this case, the earli-
est effective date of service connection for diseases pre-
sumptively associated with herbicide exposure “will be the
later of the date such claim was received by the [Agency] or
the date the disability arose.” 38 C.F.R. § 3.816(c)(2)
(emphasis added). In this case, because the Veteran did
not file any claim for service connection prior to Septem-

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GARZA v. SHINSEKI 8
ber 20, 2002, even assuming the Agency were to grant
retroactive service connection for ischemic heart disease,
he could not meet § 1318’s durational requirement.
Because the earliest effective date to which the Vet-
eran could possibly be entitled to TDIU is September 20,
2002; because that date is less than ten years prior to his
death in January 2008; and because the Veteran’s disabil-
ity was not “continuously rated totally disabling for a
period of not less than five years from the date of [his]
discharge” in 1972, the Veteran does not and cannot
satisfy the conditions of 38 U.S.C. § 1318(b). This court
has considered Garza’s remaining arguments and finds
that they lack merit.
For these reasons, this court affirms the decision of
the Veterans Court.
AFFIRMED
COSTS
Each party shall bear its own costs.

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