Citation Nr: 0700871 Decision Date: 01/11/07 Archive Date: 01/24/07 DOCKET NO. 05-04 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to November 1, 2002, for an award of Dependency and Indemnity Compensation (DIC). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had active service from August 1965 until August 1969. He died on June [redacted], 2001. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. The appellant offered testimony at a videoconference hearing before the undersigned Veterans Law Judge in June 2006. In June 2006 the appellant submitted documents from the Social Security Administration (SSA) accompanied by a waiver of initial review by the VA regional office. FINDINGS OF FACT 1. The veteran died on June [redacted], 2001; the cause of death was lung cancer. 2. On or about August 17, 2001, the appellant contacted the Social Security Administration (SSA) for the purpose of filing a claim for benefits based on the veteran's death. CONCLUSION OF LAW The criteria for an effective date of June 1, 2001, for the award of dependency and indemnity compensation benefits, have been met. 38 U.S.C.A. §§ 5107, 5110 (West. 2002 & Supp. 2005); 38 C.F.R. §§ 3.114(a), 3.153, 3.400 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the issue on appeal was first raised in a notice of disagreement submitted in response to the VA's notice of its decision on a claim for which the VA had already notified the claimant of the information and evidence necessary to substantiate the claim. Under 38 U.S.C. § 5103(a), the VA, upon receipt of a complete or substantially complete application, must notify the claimant of the information and evidence necessary to substantiate the claim for benefits. However, in this case the issue on appeal did not stem from an application for benefits, it stemmed from a notice of disagreement as to the effective date assigned by a VA rating decision. Under 38 U.S.C. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the "agency of original jurisdiction" must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03. The Board notes that the January 2005 statement of the case (SOC) informed the veteran of the regulations governing the award of an effective date, and informed the veteran of 38 C.F.R. § 3.159. Furthermore, the claim at issue is a claim for an earlier effective date and all the pertinent evidence is already of record. In light of the above, further development in this regard would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its obligation to notify. Duty to Assist The veteran does not allege, nor does the record reflect, that there exists outstanding evidence relevant to the issue on appeal. The veteran's service medical records are associated with the claims file, as are private medical records concerning his fatal lung cancer. Also of record is correspondence from the Social Security Administration (SSA) indicating that the appellant contacted that agency on or about August 17, 2001. The appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. The Board notes that the veteran's exact service dates in Vietnam are not noted in any official Army personnel record associated with the claims file. Medical records dated as late as August 1969 reveal that the veteran was in Vietnam until at least August 5, 1969. Further, the claims file also contains a letter written by the veteran to VA dated in July 29, 1969 stating that he was in Vietnam at the time the July 29, 1969 letter was written. As service medical records and other available evidence establishes that the veteran was in Vietnam until at least August 1969, the Board finds it unnecessary to remand this case for official dates of Vietnam service. As such, the Board finds the VA's duty to assist in this case has been met. Taking these factors into consideration, there is no prejudice to the veteran in proceeding to consider his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Legal criteria for effective dates Except as otherwise provided, the effective date of an evaluation and award of disability compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The effective date of an award of dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 C.F.R. § 3.400(c)(2). The effective date of award of dependency and indemnity compensation based on change of law or administrative issue shall be in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement. 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. 38 C.F.R. § 3.114(a)(1),(2),(3). The provisions of 38 C.F.R. § 3.309(e), concerning presumptive service connection for certain diseases based on certain exposure to agent orange, were amended to include lung cancer (if manifested to a degree of 10 percent or more within 30 years after departure from Vietnam). These amended regulations were effective as of June 9, 1994. 59 Fed. Reg. 29723-29724. VA subsequently issued a regulation, effective January 1, 2002, which removed that 30-year time restriction for manifestation of a respiratory cancer. See Public Law 107-103, Veterans Education and Benefits Expansion Act of 2001. A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r). Pursuant to 38 C.F.R. § 3.153, an application on a form jointly prescribed by the Secretary and the Secretary of Health, Education, and Welfare filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits and to have been received in the Department of Veterans Affairs as of the date of receipt by the Social Security Administration. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However the provisions of 38 C.F.R. § 3.157(b)(1) state that such reports must relate to examination or treatment of a disability for which service- connection has previously been established or that the claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b)(1). Factual Background The veteran died on June [redacted], 2001. The cause of death was lung cancer. Private medical records dated in April 1999 first reflect a diagnosis of lung cancer. Medical records noted that the veteran had "progressive deterioration" at home with symptoms such as shortness of breath, wheezing, phlegm, and conditions necessitating emergency room care months before his death. A letter from the Social Security Administration reveals that on or about August 17, 2001, the appellant contacted that agency for the purpose of filing a claim for benefits based on the veteran's death. In October 2003 the appellant filed a claim of entitlement to DIC benefits. Such claim was granted in a January 2004 rating decision. The claim was awarded on a presumptive basis pursuant to 38 C.F.R. § 3.309. In a February 3, 2004 notice letter accompanying the January 2004 rating action, the appellant was informed that the payment start date for her award of DIC was December 1, 2003. A RO letter dated February 20, 2004, informed the appellant that an adjustment was made and that DIC was be to be paid, effective November 1, 2002. The RO letter stated that benefits could not be awarded earlier than the January 1, 2002 change in the law since application for such benefits had not been made until October 31, 2003. Analysis As noted, the claims file contains evidence demonstrating that the appellant had filed a claim for entitlement to death benefits with SSA in August 2001. Pursuant to 38 C.F.R. § 3.153, an application for SSA benefits is considered a claim for death benefits and is deemed to have been received in the Department of Veterans Affairs as of the date of receipt by the Social Security Administration, provided such application is "on a form jointly prescribed by the Secretary and the Secretary of Health, Education, and Welfare." In the present case, the actual forms on which the appellant made her SSA claim are not of record. The Board will resolve doubt in the claimant's favor and find that any application filed with SSA complied with the requirements of 38 C.F.R. § 3.153. At any rate, it is clear that the claims process was started with SSA in August 2001. Moreover, as discussed in Kay v. Principi, 16 Vet. App. 529 (2002), VA has set forth a broad definition for the types of applications that are considered joint applications for VA and SSA benefits. Given this context of interpreting the language of 38 C.F.R. § 3.153 liberally, it is at least as likely as not that the manner of application submitted to SSA in August 2001 was a joint application within the meaning of 38 C.F.R. § 3.153. The Board here notes in passing that the January 2005 statement of the case, in an effort to assist the appellant, correctly informed her that she should submit documents associated with the SSA as it could prove beneficial to her claim. The Board further notes that the aforementioned SSA document was not of record at the time the January 2005 statement of the case was issued. In sum, through application of 38 C.F.R. § 3.153, the Board finds that the appellant had filed a claim of entitlement to VA death benefits on or about August 17, 2001. The RO (as discussed in the January 2005 statement of the case) determined that this case was governed by 38 C.F.R. § 3.114, stating that the reason 38 C.F.R. § 3.114 applies was that "prior to January 1, 2002 service connection for lung cancer could only be granted if it manifested within 30 years after the veteran's departure from Vietnam. The veteran developed lung cancer more than 30 years after he returned from Vietnam and under the prior regulations service connection for the cause of death could not be considered." First, the Board notes that the veteran's fatal lung cancer was diagnosed in April 1999, a time period within 30 years of his August 1969 departure from Vietnam (as for the law that required that respiratory cancers become manifest to a degree of 10 percent or more within 30 years after the last date on which the veteran was exposed to an herbicide agent during active service, the Board notes that the private medical records clearly show that the disease was manifest to a degree of 10 percent or more). In short, and as essentially noted by the January 2004 rating decision, DIC was properly awarded in January 2004 based on the version of 38 C.F.R. § 3.309(e) that became effective in 1994. In sum, the "liberalizing law" at issue here is the regulation that added lung cancer to the list of diseases for which service connection may be presumed in certain Vietnam War veterans (in other words, 38 C.F.R. § 3.309(e) that became effective June 9, 1994). Therefore, in order for 38 C.F.R. § 3.114 to apply in this case, the evidence would have to show that the veteran "met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." 38 C.F.R. § 3.114(a). However, there is no evidence of lung cancer prior to April 1999, and no suggestion whatsoever that any competent medical evidence exists to show that the veteran had lung cancer as of June 9, 1994, and continuously thereafter. In short, 38 C.F.R. § 3.114 does not apply in this case. As noted, 38 C.F.R. § 3.400(c)(2) provides that when a claim for DIC is received within one year of the initial report of actual death, the appropriate effective date shall be the first day of the month in which the death occurred. Here, as previously discussed, a claim was filed (in August 2001) within a year of the veteran's death on June [redacted], 2001. Thus, as the effective date of an award of dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which the death occurred, assignment of an effective date of June 1, 2001, is warranted. ORDER An effective date of June 1, 2001, for an award of Dependency and Indemnity Compensation (DIC) is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs