Citation Nr: 1103364 Decision Date: 01/26/11 Archive Date: 02/01/11 DOCKET NO. 09-10 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of service connection for lung cancer. 2. Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of service connection for brain cancer. 3. Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of special monthly compensation based on housebound criteria. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran had active military service from October 1966 to November 1968. He died in December 2007. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The appellant indicated in an April 2009 letter that she wished to withdraw her request for a Board hearing. She has not requested that the hearing be rescheduled. Accordingly, her request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. The Veteran had claims of entitlement to effective dates prior to June 19, 2007, for the grants of service connection for lung cancer and brain cancer as well as special monthly compensation based on housebound criteria, pending at the time of his death in December 2007. 2. The Veteran's widow, the appellant, filed a claim for accrued benefits within one year of the Veteran's death. 3. On June 19, 2007, a VA Form 21-4138 dated June 12, 2007, indicating that the Veteran wished to claim service connection for lung cancer and a brain tumor, was received. 4. The competent evidence of record at the time of the Veteran's death does not establish entitlement to an effective date prior to June 19, 2007, for the award of service connection for lung cancer and brain cancer, or for special monthly compensation based on housebound criteria. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for entitlement to service connection for lung cancer have not been met. 38 U.S.C.A. § 1110, 5100, 5101, 5107, 5121 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(p), 3.102, 3.157, 3.303, 3.400, 3.1000 (2010). 2. The criteria for establishing entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for entitlement to service connection for brain cancer have not been met. 38 U.S.C.A. § 1110, 5100, 5101, 5107, 5121 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1(p), 3.102, 3.157, 3.303, 3.400, 3.1000 (2010). 3. The criteria for establishing entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the assignment of special monthly compensation based on aid and attendance have not been met. 38 U.S.C.A. §§ 1114, 5100, 5102, 5107, 5121 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.400, 3.1000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA 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 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the appellant was sent a letter in March 2008 that addressed entitlement to accrued benefits and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, with respect to the Dingess requirements, the appellant is deemed to have actual knowledge of the assignment of an effective date in the context of service connection as this is the premise of the claim. It is therefore inherent that the she had actual knowledge of the effective date element of the claims. Next, VA has a duty to assist the appellant in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination and the appellant's contentions. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The law applicable to accrued benefits provides that certain individuals, including the Veteran's surviving spouse, may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which the Veteran was entitled at the time of his death under existing ratings or based on evidence in the file or constructively of record at the time of his death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2010). A claim for such benefits must be filed within one year of the Veteran's death. 38 C.F.R. § 3.1000(a), (c) (2010). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (a consequence of the derivative nature of the surviving spouse's entitlement to a Veteran's accrued benefits claim is that, without the Veteran having a claim pending at time of death, the surviving spouse has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c) (2010). The term "finally adjudicated claim" means an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is earlier. 38 C.F.R. § 3.160(d); see also 38 C.F.R. §§ 20.1103, 20.1104 (2010). The effective date of an award of service connection will be the day following discharge from service if the claim is received within one year of the Veteran's discharge from service. Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2010). 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 U.S.C.A. § 5101(a) (West Supp. 2010); 38 C.F.R. § 3.151(a) (2010). The term "claim" or "application" means 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) (2010). 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 generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2010). On June 19, 2007, decades after his discharge from service, VA received the Veteran's original claim of entitlement to service connection for a disability, namely service connection for lung cancer and a brain tumor. Accordingly, when the RO granted service connection, it assigned an effective date of June 19, 2007, the date of receipt of claim. See 38 C.F.R. § 3.400 (2010). There is no prior claim for service-connected compensation, either formal or informal, in the record. Nor does the appellant claim that there was a previous claim for service connection. The Veteran did raise claims of entitlement to nonservice-connected pension in June 1986 and January 2001, and this was ultimately awarded with an effective date of January 16, 2001. The Board acknowledges the contention that the Veteran was diagnosed with lung cancer several years prior to his date of claim, and that he had received treatment at a VA Medical Center for such condition in January 2007. It is asserted that retroactive payments are warranted for the now service-connected disabilities. The appellant argues in her VA Form 9 that the effective date for the above listed issues should have been December 21, 2006, when the brain tumor was found. However, the fact that the Veteran received treatment for his cancer prior to June 2007 does not warrant the assignment of an earlier effective date. While 38 C.F.R. § 3.157(b) does provide that VA treatment records can constitute an informal claim in certain cases, application of this regulation is not warranted in this case, as such regulation applies only to a distinct group of claims where service connection has already been established for the condition at issue. See Crawford v. Brown, 5 Vet. App. 33 (1993); MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because appellant had not been granted service connection for his claimed condition, the mere receipt of medical records could not be construed as an informal claim for that disability). Concerning the appellant's accrued claim of entitlement to an earlier effective date for special monthly compensation based on housebound criteria, the Board finds that as the Veteran was not entitled to service connection for any disability prior to June 19, 2007, it therefore follows that he is not eligible for special monthly compensation prior to that date. Given the above, as the Veteran did not file a claim for service connection for any disability prior to June 19, 2007, the earliest possible effective date for the award of service connection for his disabilities has already been assigned. Thus, there is no basis for effective dates earlier than June 19, 2007. Accordingly, the accrued claims for earlier effective dates here must fail. ORDER Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of service connection for lung cancer, is denied. Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of service connection for brain cancer, is denied. Entitlement to accrued benefits based on a pending claim of entitlement to an effective date prior to June 19, 2007, for the grant of special monthly compensation based on housebound criteria, is denied. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs