Shirlеy D. Williams (‘Williams”) appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans’ Court”) affirming a determination by the Board of Veterans’ Appeals (“Board”) that Williams was not entitled to an effective date prior to October 20, 1989, for her award of dependency and indemnity compensation (“DIC”).
Williams v. Principi,
I. BACKGROUND
Williams’ husband, James B. Williams, a Vietnam veteran, died of lung cancer on June 28, 1979. Williams filed a claim for DIC benefits in August 1979. In November 1979, a Veterans’ Administration (“VA”) regional office (“RO”) denied Williams’ claim. The Board finally denied her claim on October 2, 1980, finding that the lung cancer did not develop in service or within a presumption period, that it did not result from exposure to Agent Orange, and that it was not causally related to service-connected disabilities. In 1984, Congress passed the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, which mandated the establishment of standards for assessing Agent Orange claims. Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, § 3, 98 Stat. 2725 (1984) (codified in part at 38 U.S.C. § 1154 (2000)) (“Dioxin Act”). In June 1985, Williams again filed for DIC benefits. The VA reopened the original claim, and denied it again on July 22,1985.
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On September 25, 1985, 38 C.F.R. § 3.311a came into effect; this regulation established service connection between dioxin exposurе and the skin condition chlor-acne. Adjudication of Claims Based on Exposure to Dioxin or Ionizing Radiation, 50 Fed.Reg. 34,452, 34,458 (August 26, 1985) (codified at 38 C.F.R. § 3.311a). The validity of this regulation was challenged in a class action suit filed in the Northern District of California in 1987.
Nehmer v. United States Veterans’ Administration,
In October 1989, Williams requested that her DIC claim be reopened. On January 3, 1990, the Department of Veterans’ Affairs (“DVA”) notified her that it was delaying action on her claim pending reconsideration of its regulations relating to dioxin exposure. On February 6, 1991, the Agent Orange Act of 1991 was passed; this statute established a presumption of service connection, by reason of exposure to dioxin, for diseases that were to be identified in later-promulgated regulations. Agent Orange Act of 1991, Pub.L. No. 102-4, § 2, 105 Stat. 11 (1991) (codified in part at 38 U.S.C. § 316 (2000)) (“Agent Orange Act”).
In May 1991, the government and the plaintiffs in the Nehmer litigation entered into a stipulation according to which the DVA would readjudicate claims, the denials of whiсh were voided by the 1989 Neh-mer I decision. Nehmer v. United States Veterans Administration, No. CV-86-6160 (TEH), (N.D.Cal. May 17, 1991) (“Nehmer Stipulation”). The effective date of any resulting award of benefits would be based on the filing date of the original claim, for claims originally filed before May 3, 1989 (“Stipulation 1”), or on the later of the filing date of the claim or the date of disability or death of the veteran, for claims filed on or after May 3, 1989 (“Stipulation 2”). Id., slip op. at 2-5.
On June 9, 1994, revised 38 C.F.R. § 3.309(e), establishing a presumptiоn of service connection for lung cancer, came into effect. Disease Associated with Exposure to Certain Herbicide Agents (Multiple Myeloma and Respiratory Cancers), 59 Fed.Reg. 29,723, 29,724 (June 9, 1994) (codified at 38 C.F.R. §§ 3.307(a), 3.309(e)) (adding the words “Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)” to the list of diseases which are service-connеcted “[i]f a veteran was exposed to an herbicide agent during active military ... service”). In July of 1994, the RO granted service connection for James Williams’ cancer, and later established the effective date of Williams’ DIC benefits to be October 20, 1989, the date on which Williams requested reopening of her DIC claim. Williams appealed the decision to the Board.
*1377 Bоth the Board and the Veterans’ Court held that, pursuant to the Nehmer Stipulation, Williams was entitled to an effective date that was the same as that of her request to reopen the claim, October 20, 1989. Williams has appealed the decision of the Veterans’ Court to this court. We have jurisdiction under 38 U.S.C. § 7292.
II. DISCUSSION
A. Standard of Review
This scope of this court’s review of a decision of the Veterans’ Court is governed by 38 U.S.C.- § 7292(d):
(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and 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 Court of Appeals fоr Veterans Claims that the Court of Appeals for the Federal Circuit finds to be—
(A) arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or
(D) without observance of procedure required by law.
(2) Except to the extent that an appeal under this сhapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.
.The interpretation of a court order involves a question of law.
YBM Magnex, Inc. v. Int’l Trade Comm’n,
B. Analysis
At issue in the present appeal is the effective date of Williams’ DIC benefits. Williams appealed from the Board’s determination that she was not entitled to an effective date earlier than October 20,, 1989. In its en banc split decision, the Veterans’ Court addressed the legal questions of:
whether Nehmer I and Nehmer II had the legal effect of voiding the 1980 and 1985 denials of [Williams’] August 1979 and June 1985 DIC claims; whether, if those denials were voided, there is a legal basis for an earlier effective date under Stipulation 1 or the statutory and regulatory effective date provisions; and whether, if the denials were not voided, there is a legal basis for an earlier effective date, under Stipulation 2 or the statutory and regulatory effective-date provisions, based on the 1979, 1985, or 1989 claim.
Williams,
Williams argues that the majority’s interpretation of the
Nehmer
Stipulation is too restrictive. She adverts to the familiar principle that “the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant.”
Hodge v. West,
Alternatively, Williams argues that the benefits could be awarded based on the 1985 claim; in that case, she maintains that the “Act or administrative issue” set forth in 38 U.S.C. § 5110(g) would be the 1984 Dioxin Act, which sets forth as its purpose “to ensure that Veterans’ Administration disability compensation is provided to veterans who were exposed during service in the Aimed Forces in the Republic of Vietnam to a herbicide containing dioxin.” Dioxin Act, Pub.L. No. 98-542, § 3, 98 Stat. 2725 (1984). Williams argues that this view is bolstered by the Veterans’ Court minority’s conclusion that “the 1984 Dioxin Act is the legislation enabling VA’s provision, at that time and at any future date, of disability and survivor compensation based on exposure to Agent Orange in Vietnam.”
Williams,
The government responds that Williams is not entitled to an effеctive date prior to October 20, 1989. It argues that the award of DIC benefits was made pursuant to DVA’s June 9, 1994 regulation establishing a presumption of service connection for lung cancer, not pursuant to earlier legislation providing for studies into the effects of dioxin, so that Williams is not entitled to an effective date based on that earlier legislation under 38 U.S.C. § 5110(g). Furthermore, thе government argues that the Veterans’ Court correctly concluded that the denials of Williams’ 1979 and 1985 claims were not voided by Nehmer I, because those claims were denied before the challenged regulation took effect, and therefore the earliest effective date allowable under the Nehmer Stipulation is October 20, 1989, the date of Williams’ third claim for DIC benefits.
1
The
Nehmer
clаss action was filed in February 1987; the named plaintiffs chai-
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lenged the promulgation in 1985 of a regulation, 38 C.F.R. § 3.311a, as an improper implementation of the 1984 Dioxin Act.
Class Certification,
Plaintiffs claim that the 1985 regulation, and the procedures used to enact it, violate the Dioxin Act. Plaintiffs denied benefits prior to the regulation’s enactment lack standing to pose that legal challenge to their denial.
Class Certification,
In 1989, the court invalidated § 3.311a(d), the portion of the regulation that denied service connection for diseases other than chloracne.
Nehmer I,
In May of 1991, the parties agreed to a Final Stipulation and Order that resolved the remaining issues of injunctive and monetary relief for the class. Nehmer Stipulation, No. CV-86-6160 (TEH) (N.D.Cal. May 17, 1991). The Nehmer Stipulation provided that the VA would complete its analysis оf possible connections between dioxin exposure and three specified diseases, among them lung cancer. Nehmer Stipulation, slip op. at 2. On reviewing the resulting scientific report, the1 Secretary would determine whether or not to issue a final rule establishing service connection for each disease. Id., slip op. at 2-3. The Stipulation then set forth the VA’s course of action following the issuance of such a final rule:
3. As soon as a final rule is issued service connecting, based on dioxin exposure, any of the three diseases, soft tissue sarcoma, and any other disease which may be service connected in the future pursuant to the Agent Orange Act of 1991, 38 U.S.C. § 316(b), the VA shall promptly thereafter readjudicate all claims for any such disease which were voided by the Court’s Order of May 3, 1989 [Nehmer I], as well as adjudicate all similar claims filed subsequent to the Court’s May 3, 1989 Order, without waiting for final rules to be issued on any other diseases.
5. For any of the three diseases for which the Secretary determines to issue a final positive rule ... as to any denials of claims which were voided as a result of the Court’s May 3, 1989 Order, the effectivе date for disability compensation or dependency and indemnity compensation (“DIC”), if the claim is allowed upon readjudication ... will be the date the claim giving rise to the voided decision *1380 was filed (except as otherwise provided in 38 U.S.C. §§ 3010(b)(1), or 3010(d)(1)) .... For any claim for any such disease which was not filed until after May 3, 1989, the effective date for beginning disability compensation оr DIC will be the date the claim was filed or the date the claimant became disabled or death occurred, whichever is later.
Id., slip op. at 3-5.
A dispute subsequently arose as to which benefit decisions were “made under” 38 C.F.R. § 3.311a(d),
Nehmer I,
Williams argues that the statement in
Nehmer II
that
Nehmer I
“voided all benefit decisions which involved claims in which the disease or cause of death is later found — under valid Agent Orange regulation(s) — to be service connectеd,”
Nehmer II,
2
Williams also raises, as an alternative basis for entitlement to an earlier *1381 effective date for her DIC benefits, 38 U.S.C. § 5110(g). That statute provides that:
where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, 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) (2000). Williams argues that either the 1984 Dioxin Act, or unspecified litigation funding VA research into the effects of dioxin exposure, could be the “Act or administrative issue” pursuant to which Williams’ DIC benefits were awarded.
We do not agree. Section 5110(g) “provides the means for determining the effective date of any award of VA benefits made pursuant to a liberalizing law or administrative issue.”
Spencer v. Brown,
(1) establish guidelines and (where appropriate) standards and criteria for the resolution of claims for benefits under laws administered by the Veterans’ Administration where the criteria for eligibility for a benefit include a requirement that a death or disability be service connected and the claim of service connection is based on a veteran’s exposure during service ... in the Republic of Vietnam during the Viеtnam era to a herbicide containing dioxin ... and
(2) ensure that, with respect to those claims, the policy of the United States described in section 2(13) [the “benefit of the doubt” rule] is carried out.
Dioxin Act, Pub.L. No. 98-542, § 5, 98 Stat. 2725 (1984). Since this statute did not establish service connection for lung cancer in veterans exposed to dioxin during service, it did not establish a present entitlement to DIC benefits for Williams. Similarly, statutes which may have provided funding in 1979 for the VA to conduct dioxin-related research did not establish an entitlement to DIC benefits for widows of veterans who died as a result of lung cancer after exposure to dioxin during service. Rather, the award of DIC benefits to Williams was first made possible by, and was thus made “pursuant to,” revised 38 C.F.R. § 3.309(e), which took effect on June 9, 1994. Disease Associated with Exposure to Certain Herbicide Agents (Multiple Myeloma and Respiratory Cancers), 59 Fed.Reg. 29,723, 29,724 (June 9, 1994) (codified at 38 C.F.R. §§ 3.307(a), 3.309(e)).
AFFIRMED
COSTS
No costs.