Citation Nr: 1120746 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 10-00 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date prior to February 28, 2008, for the grant of service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. He died in June 2006. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In December 2010 the appellant notified the Board that she did not want a hearing and requested that a decision be made without a hearing. FINDING OF FACT The appellant's initial claim seeking service connection for the cause of the Veteran's death was received on February 28, 2008. CONCLUSION OF LAW The criteria for an effective date prior to February 28, 2008, for the award of service connection for cause of the Veteran's death have not been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2002); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This appeal arises from the appellant's disagreement with the initial assignment of an effective date following the grant of service connection. The VCAA requires that the Secretary need only provide the appellant with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Generic notice provided in the rating decision and statement of the case (SOC) has already provided the claimant with the notice of the law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). Additionally, the Board notes that the RO sent the appellant VCAA notice regarding effective dates by a letter dated in August 2009. As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records and death certificate. Also associated with the claims file are all documents submitted by the appellant, including a June 2006 private medical statement. In February 2010, the RO wrote to the appellant advising her to submit additional evidence if she had any evidence showing that she had applied for VA benefits prior to February 2008. No additional evidence was received from the appellant. The record does not indicate that there are any additional pertinent records obtainable. The appellant has been provided ample opportunity to present evidence and argument in support of the appeal. In sum, the Board is satisfied that the originating agency properly processed the appellant's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case the September 2008 rating decision on appeal granted service connection for the cause of the Veteran's death, effective from February 28, 2008. Payment began on March 1, 2008, the first day of the month following the month in which the award became effective. See 38 C.F.R. § 3.31 (2010). The appellant asserts that she should be granted an effective date of June 13, 2006, the date of her husband's death. On her December 2009 substantive appeal the appellant asserted that in June 2006 she originally filed for disability compensation based on her husband's May 2000 colon cancer surgery. She said that she filed the claim through a Veterans Service Officer in Butte, Montana, and she never heard anything further. The effective date for the cause of death for which an application is received within one year of the date of the Veteran's death shall be the first day of the month in which the death occurred; otherwise, it will be the date of receipt of the claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(c)(2). In this case the Veteran died in June 2006. The claims file reveals that the appellant's claim of service connection for the cause of the Veteran's death was first received by VA on February 28, 2008. On that date the RO received a completed VA Form 21-526, a statement in support of claim dated January 28, 2008, a death certificate, and a private medical statement dated in June 2006. The appellant has submitted a business card of a Montana Veterans Service Officer (state employee) with her substantive appeal. She stated that she went to the service officer in June 2006 and applied for VA compensation benefits based on the Veteran's cancer surgery in May 2000. The Board notes that the claims file does not indicate any contact from the appellant or a representative on her behalf subsequent to the Veteran's death and prior to February 28, 2008. The June 2006 physician assistant's letter submitted by the appellant states that the Veteran had end stage lung cancer and that he was under the care of a hospice. Based on this letter and on the appellant's statements, it is clear she is asserting that she applied for compensation benefits on behalf of the Veteran in June 2006, prior to the Veteran's death. The Board notes that any claims made on behalf of the Veteran prior to the Veteran's death cannot be considered a claim for service connection for the cause of the Veteran's death. Even if such a claim as described by the appellant were contained in the Veteran's claims file, such would not have any effect on the assignment of an effective date for the cause of the Veteran's death. In this case the appellant's initial claim of service connection for the cause of the Veteran's death was received on February 28, 2008. As this claim was received more than a year after the Veteran's death, an effective date prior to February 28, 2008, is not warranted. ORDER Entitlement to an effective date prior to February 28, 2008, for the grant of service connection for the cause of the Veteran's death is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs