Citation Nr: 0812346 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-40 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than October 31, 2001, for an award of improved pension benefits. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from April 1951 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 decision letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied an effective date earlier than October 31, 2001, for an award of improved pension benefits. The veteran perfected a timely appeal contesting this adverse determination. The veteran testified during a hearing at the RO before the undersigned in December 2006. A transcript of that hearing is of record. In July 2007, this matter was remanded to the RO and is once again before the Board. FINDINGS OF FACT 1. On October 31, 2001, the RO received the veteran's informal claim for entitlement to improved pension benefits. 2. In November 2001, the RO received the veteran's formal claim for improved pension benefits, and attached to this claim was a copy of the veteran's drivers license showing proof of his age. 3. In a December 2001 decision letter, the RO awarded the veteran improved pension benefits, effective from October 31, 2001, with payments commencing on November 1, 2001. By this same decision letter, the RO notified the veteran of this determination and his appellate rights. The veteran did not file an appeal disputing the effective date. 4. In March 2004, the RO received the veteran's claim seeking an earlier effective date (i.e., retroactive payment) for his award of improved pension benefits. 5. In a May 2004 decision letter, the RO denied the veteran's claim for an earlier effective date for improved pension benefits, and the veteran timely appealed this decision. 6. The evidence of record does not indicate that a formal or informal claim for improved pension benefits was received by the RO prior to October 2001; that a formal or informal claim for retroactive pension benefits was received by the RO prior to March 2004; or that the incapacitating effects of a physical or mental disability prevented the veteran from a filing a pension at least thirty days immediately following the date on which he became permanently and totally disabled. CONCLUSION OF LAW The criteria for an effective date earlier than October 31, 2001, for an award of improved pension benefits have not been met. 38 U.S.C.A. §§ 1513, 5107, 5110, 7104 (c), 7105 (West 2002); 38 C.F.R. §§ 3.3(a)(3), 3.31, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103(a) (West 2002), VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b) (2007), VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. The VCAA notice should be provided to a claimant before the Agency of Original Jurisdiction (AOJ) renders the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If such notice is sent after the initial decision, then it should be sent before a readjudication of the claim. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). Here, the veteran was issued a VCAA letter meeting the specific requirements of 38 U.S.C.A. § 5103(a) and C.F.R. § 3.159(b)(1) in August 2007. While this letter was issued subsequent to the appealed decision, the veteran's case was subsequently readjudicated in a November 2007 supplemental statement of the case, which cured any deficiency. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim under 38 U.S.C.A. § 5103A, VA must seek to obtain all pertinent records, including SSA records, of which it is put on notice. See Murincsack v. Derwinski, 2 Vet. App. 363, 372 (1992) (recognizing that evidence from the Social Security Administration (SSA) must be considered in a VA decision regarding benefits). Although the veteran is in receipt of SSA retirement benefits and the VA did not make any efforts to obtain these records, the Board finds that those records would not assist the veteran's claim because his claim for an earlier effective date is precluded as a matter of law, as more fully discussed below. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law) In summary, all relevant facts have been properly developed with regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Earlier Effective Date Improved pension benefits are payable to each veteran with qualified wartime service who meet certain income requirements and who is 65 years or older. 38 U.S.C.A. §§ 1513, 1521; 38 C.F.R. § 3.3(a)(3). Improved pension means the disability or death pension programs becoming effective January 1, 1979, under the authority of Pub. L. 95-588; 92 Stat. 2497. 38 C.F.R. § 3.1(w) (2007). The method for determining the effective date of an award for disability pension is set forth in 38 U.S.C.A. § 5110 (a) and (b)(3)(A) and 38 C.F.R. § 3.400(b). The general rule with respect to the effective date of a pension benefits is that the effective date of such award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a)(West 2002). This statutory provision is implemented by regulation which provides that where pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits. 38 C.F.R. § 3.151(b). If, within one year from the date on which a veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that disability was so incapacitating that it prevented him from filing a claim for at least the first 30 days immediately after the date on which he became permanently and totally disabled, the award may be effective from the date of claim or the date on which he became totally disabled, whichever is to his advantage. A claim for retroactive pension must be received within one year of the date on which he became permanently and totally disabled. 38 C.F.R. §§ 3.151(b), 3.400(b)(1)(ii). Payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, or dependency or indemnity compensation may not be made for any period prior to the first day of the calendar month following the date on which the award becomes effective. 38 U.S.C.A. § 5111 (West 2002); 38 C.F.R. § 3.31 (2007). The date of receipt of the claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2007). 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 C.F.R. 3.1(p). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, or others, may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The record reflects that the veteran filed an informal claim seeking entitlement to pension benefits in October 2001, and that the RO received his formal claim for the same in November 2001. On his application form, the veteran stated that he was over the age of 65 and submitted along with his claim a copy of his drivers license. That claim was granted in a December 2001 decision letter, which established entitlement to pension benefits effective from October 31, 2001 (the date of receipt of his claim for disability pension), with payment commencing on November 2001. 38 U.S.C.A. § 5111; 38 C.F.R. § 3.31. In the December 2001 letter, the RO also provided the veteran notice of this determination and of his appellate rights. The veteran did not appeal the effective date assigned, as indicated by the record. 38 U.S.C.A. § 7105(a), (b)(2), (c) (West 2002); 38 C.F.R. §§ 20.200, 20.201. As a result, this decision as to the effective date for the award pension benefits, which was engendered by the October 2001 claim, became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.160(d) (2007). The record discloses that the veteran contacted the RO in December 2001, as indicated by the December 2001 report of contact. The veteran indicated that the amount of his award should be increased because it did not include Medicare expenses and did not consider the fact that he was a Korean War veteran. The veteran made no mention of entitlement to an earlier effective date or retroactive pension benefits. The amount of the veteran's improved pension payments was subsequently adjusted to reflect his Medicare expenses. The record discloses that no further correspondence was received from the veteran until March 1, 2004, when the veteran filed a claim seeking entitlement to retroactive pension benefits (i.e., an earlier effective date). In a May 2004 decision letter, the RO denied the veteran's claim for retroactive benefits (i.e., an earlier effective date). The Board has reviewed the evidence of record and considered the veteran's contention with regard to his appeal for an earlier effective date. Specifically, in his March 2004 claim and March 2008 Written Brief Presentation, the veteran essentially asserts that the effective date for his improved pension should be retroactive to 1997, when he started receiving SSA retirement benefits. However, the Board notes that a claim for SSA benefits is not interchangeable with a claim for VA benefits. The only exception is a claim for death benefits under 38 C.F.R. § 3.153, which is not applicable in the instant case. Thus, the Board finds that there is no legal basis on which to construe the claim filed with SSA as either an informal or formal claim for VA benefits. Accordingly, the veteran did not file a claim with VA for a pension prior to October 31, 2001, and there is nothing in the record that can be construed as an informal claim. Hence, an effective date as of 1997, based on receipt of SSA retirement benefits, is not warranted. Further, the veteran does not contend, nor does the record reflect, that he was prevented from applying for VA pension benefits by reason of incapacitating physical or mental disability, during the time that he filed his claim for SSA retirement benefits. Accordingly, the Board must conclude that there is presently no legal basis for the assignment of an effective date for the award of improved pension benefits prior to October 31, 2001, the date of receipt of the veteran's claim for pension benefits. Thus, the claim for an earlier effective date must be denied. 38 U.S.C.A. §§ 5110(b)(3), 7105; 38 C.F.R. § 3.400 (b)(2). The Board sympathizes with the veteran, but emphasizes that it is legally bound in its decisions by applicable statutes, VA regulations and precedent opinions of the VA General Counsel. 38 U.S.C.A. 38 U.S.C.A. § 7104(c). ORDER Entitlement to an effective date earlier than October 31, 2001, for an award of improved pension benefits is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs