Citation Nr: 1124102 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-42 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date, prior to December 13, 2007, for establishment of entitlement to nonservice-connected pension benefits. ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from April and September 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the April 2008 rating decision, the RO granted nonservice-connected pension benefits effective December 13, 2007, and in the September 2008 rating decision, the RO denied entitlement to an effective date, prior to December 13, 2007, for establishment of entitlement to nonservice-connected pension benefits. Per the Veteran's request, a personal hearing before a Veterans Law Judge at the RO was scheduled on his behalf in March 2011. The Veteran failed to report to the scheduled hearing, and did not provide good cause for his failure to report. As such, the Veteran's request for a personal hearing before a Veteran's Law Judge is deemed withdrawn. FINDINGS OF FACT 1. A cover letter from a veterans service organization representative along with a VA Form 21-526, formal claim for nonservice-connected pension, are dated June 11, 2007, indicating the Veteran's intent to file a claim for nonservice-connected pension as of that date; however, these documents are date-stamped as being received by VA on December 13, 2007. 2. VA treatment records dating back to May 2007 provide evidence of total disablement for pension purposes dating back to at least July 2007, but there is no evidence that the Veteran was so incapacitated as to be unable to file a pension claim prior to December 13, 2007. 3. There is no pension claim, formal or informal, that was received by VA prior to December 13, 2007. 4. The Veteran submitted his formal claim for pension to a veterans service organization representative on June 11, 2007, but the claim was not filed with VA until December 13, 2007. 5. An April 2008 rating decision granted entitlement to nonservice-connected pension, effective from December 13, 2007, the date of the RO's receipt of the Veteran's claim for benefits. CONCLUSION OF LAW The criteria for the assignment of an effective date, prior to December 13, 2007, for establishment of entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C.A. §§ 1502, 1503, 1513, 1521, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.15, 4.16, 4.17 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in January 2008. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim for pension and the relative duties of VA and the claimant to obtain evidence. With regard to the underlying pension claim, the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection; however, the underlying claim was one of pension, and not service connection. Moreover, the RO sent a subsequent letter to the Veteran in June 2008 after the Veteran disagreed with the effective date of the pension award, which specifically addressed how effective dates are assigned. Moreover, the notices provided to the Veteran over the course of the appeal provided all information necessary for a reasonable person to understand what evidence and/or information was necessary to substantiate his claim. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Finally, this claim turns on interpretation of the law as it applies to the stipulated facts in this case. Here, the facts are not in dispute; thus, no additional assistance by VA would aid in the substantiation of this claim. The Veteran had the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Effective Date - Pension In this case, the facts are not in dispute. The record establishes that the Veteran completed a VA Form 21-526, claim for nonservice-connected pension benefits on June 11, 2007. The Veteran signed and dated the form on June 11, 2007 and left the form with a veterans service organization representative for processing and submission to the RO. Admittedly, the veterans service organization subsequently misfiled the Veteran's formal claim and it did not resurface until December 2007. On December 13, 2007, the veterans service organization representative faxed the claim to the RO with a cover letter, dated June 11, 2007, and noted that the claim had been lost and requested expedited handling of the claim. The claim was subsequently date-stamped on December 13, 2007. The Veteran's claim for pension was granted, with an effective date of December 13, 2007, the date on which the RO received the Veteran's claim for benefits. The Veteran maintains that the effective date of the award should be June 11, 2007, because he had an intent to submit his claim on June 11, 2007, properly filled out a formal claim form, and had VA medical records dated as of that date showing that he was totally disabled for employment purposes. Furthermore, the Veteran maintains that he should not be penalized because of a mistake made by the veterans service organization representative. Applicable regulations provide that the effective date for a claim for disability pension received on or after October 1, 1984, is the date of receipt of the claim. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(1)(ii) (2010). Nevertheless, an award of disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b)(1). 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 a physical or mental disability that was not the result of the veteran's own willful misconduct was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the pension award may be made effective from the date of receipt of the claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. § 3.400(b)(1)(ii)(B) (2010). Nonservice-connected pension benefits are payable to a veteran who served for 90 days or more during a period of war, and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521. In addition, a disability pension is payable to each veteran who served in the active military, naval, or air service for 90 days or more during a period of war and who is 65 years of age or older. See 38 U.S.C.A. § 1513 (West 2002). If a veteran's combined disability rating is less than 100 percent, then he or she must be unemployable by reason of disability to warrant nonservice-connected pension. 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4; see also Brown (Clem) v. Derwinski, 2 Vet. App. 444, 446 (1992). For the purposes of pension benefits, a person shall be considered to be permanently and totally disabled if such person is unemployable as a result of disability reasonably certain to continue throughout the life of the disabled person, or is suffering from, (1) any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the disabled person; or (2) any disease or disorder determined by the VA Secretary to be of such a nature or extent as to justify a determination that persons suffering therefrom are permanently and totally disabled. See 38 U.S.C.A. § 1502(a); 38 C.F.R. §§ 3.340(b), 4.15. All veterans who are basically eligible for pension benefits and who are unable to secure and follow a substantially gainful occupation by reason of disabilities, which are likely to be permanent, shall be rated as permanently and totally disabled. For the purposes of entitlement to pension benefits, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure or follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran's disabilities render him or her unemployable. See 38 C.F.R. § 4.17. The percentage requirements of 38 C.F.R. § 4.16 are as follows: if there is only one disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16. Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule but is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, a permanent and total disability rating for pension purposes may be assigned on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(2), 4.17(b). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151 (2010). Any communication or action, indicating an intent to apply for VA benefits from a claimant, his 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(a) (2010). Importantly, any claim, whether informal or formal, must be received by VA to be considered "received." Here, the Veteran's claim was received by a veterans service organization representative in June 2007, but was not received by VA until December 13, 2007, albeit, through no fault of the Veteran. Unfortunately, the veterans service organization misplaced the Veteran's claim for six months, and because of this, the effective date of the Veteran's pension is December 13, 2007, and not June 11, 2007 even though the claim form is dated as such. The Veteran asserts that it was not his fault that the veterans service organization misplaced his claim and that VA should assign an earlier effective date. The Veteran's assertions are competent, credible, and probative. However, in this case the facts are not in dispute and show that his claim was not received by VA until December 13, 2007. Accordingly, pursuant to the applicable criteria, the criteria for an earlier effective date are not met. The Veteran's argument has been considered, and, to some extent, the Veteran appears to be raising an argument couched in equity. While sympathetic to the appellant, the Board is nonetheless bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). This case has been decided based on its application of this law to the pertinent facts. See Owings v. Brown, 8 Vet. App. 17 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171 (1992) [noting that the Court must interpret the law as it exists, and cannot extend benefits out of sympathy for a particular claimant]. ORDER Entitlement to an effective date, prior to December 13, 2007, for the award of nonservice-connected pension benefits is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs