In the 2011 Memorandum Decision of Byron v. Shinseki, the Court of Appeals for Veterans Claims (CAVC) remanded the appellant Ms. Byron’s Dependency and Indemnity Compensation (DIC) claim for further consideration.
In Byron, Appellant’s husband died of non-Hodgkins Lymphoma as a result of his exposure to ionizing radiation during his military service. One of the issues in question was whether the Board had adequately addressed the “theory” of direct service connection for DIC benefits.
Appellant argued that she had claimed entitlement to DIC benefits by direct service connection and by presumptive service connection and that the Board had not adequately addressed her claim of direct service connection. According to appellant, that meant that her claim was still pending, and she was entitled to an earlier effective date of September 10, 1971 (the date VA received her claim).
However, the CAVC stated that the appellant’s argument “misapprehends the nature of her claim.” Byron v. Shinseki, 09-4634, 2011 WL 2441683. Citing Hillyard v. Shinseki, the court stated that “presumptive and direct service connection are different theories available to support the same claim, not themselves individual claims.” See 24 Vet. App. 343 (2011).
The CAVC found that although the theory of presumptive service connection had been addressed, the theory of direct service connection had not been properly addressed. The Board had determined that service connection was proper under presumptive service connection and granted appellant an effective date of May 1, 1988 (the date the Radiation-Exposed Veterans Compensation Act of 1988 had gone into effect).
What the Board had not done was give adequate reasons and bases as to why appellant’s claim under the theory of direct service connection was not granted. Under this theory, appellant arguably was entitled to compensation from the date she applied for DIC benefits, which was September 10, 1971 (less than a month after her husband died). For this reason, the CAVC remanded appellant’s case back to the Board for further consideration.
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