NOTE: This disposition is nonprecedential 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 

__________________________ 

MARIA E. GARZA, 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. DELERY, Acting 

Assistant Attorney General, JEANNE DAVIDSON, Director, 

TODD M. HUGHES, Deputy Director. Of counsel on the 

brief was DAVID J. BARRANS, Deputy Assistant Attorney 
2 GARZA v. SHINSEKI

General, United States Department of Veterans Affairs, of 

Washington, DC. 

__________________________ 

Before RADER, Chief Judge, LINN and O’MALLEY, Circuit Judges. 

PER CURIAM. 

Maria E. Garza (“Garza”), the surviving spouse of deceased 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 September 2003, the Agency’s Regional Office (“RO”) granted 

the Veteran service connection with an aggregate disability 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. 
 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 unemployability (“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 dependency 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 [Veterans] 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). 
4 GARZA v. SHINSEKI

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 Veterans Court properly interpreted its jurisdictional authority 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 durational 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— 
 GARZA v. SHINSEKI 5

(1) the disability was continually rated totally disabling for a period of 10 or more years immediately 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) (“Diseases 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 implementing 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 administrative issue.”). Garza appears to contend that if the Agency 

had readjudicated the Veteran’s previously denied claim 
6 GARZA v. SHINSEKI

for service connection based on ischemic heart disease, 

the Veteran could then meet the durational total disability requirements for dependency and indemnity contribution benefits under § 1318(b).

The Agency counters that, while Garza may be entitled 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 connection for heart disease, Parkinson’s disease, or b-cell leukemias.”), 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 retroactively 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 deciding 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 
 GARZA v. SHINSEKI 7

is premised on and defined by the Board’s decision concerning 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 effective 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 presumption] took effect.” Diseases Associated with Herbicides 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 implementing 38 C.F.R. § 3.309(e) imply that the effective date 

provisions of 38 C.F.R. §§ 3.816(c) and (d) (also implementing Nehmer) would pertain to any new condition 

later included in a “final regulation adding the new condition 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 earliest effective date of service connection for diseases presumptively 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-
8 GARZA v. SHINSEKI

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 Veteran 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 disability 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.