Citation Nr: 1122654 Decision Date: 06/13/11 Archive Date: 06/28/11 DOCKET NO. 09-46 553A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an effective date earlier than December 23, 2005 for the grant of death pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active military duty from November 1974 to January 1976 and died in October 1980. The appellant is his surviving spouse. This matter came to the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision issued by the Baltimore, Maryland Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded death pension benefits, effective October 23, 2006. The appellant perfected an appeal as to the effective date of the award. A statement of the case (SOC) dated in August 2009 noted that the effective date of the award would be amended to December 23, 2005 to reflect the date that the appellant's informal claim for death pension benefits was received. The appellant requested a hearing before the Board in Washington, D.C. and was notified of the scheduled hearing in June 2010; however, she cancelled the hearing. FINDINGS OF FACT 1. Following the Veteran's death in October 1980, the appellant filed an original claim for death pension benefits in November 1980; the RO denied the claim in March 1981 due to the appellant's income, and the appellant did not appeal or allege clear and unmistakable error with the March 1981 determination. 2. The appellant submitted a new claim for death pension benefits on December 23, 2005. CONCLUSION OF LAW The criteria for an effective date prior to December 23, 2005 for the grant of death pension benefits have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.152, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). The United States Court of Appeals for Veterans Claims (the Court) has held that VCAA has no effect on an appeal if the law, and not the underlying facts or development of the facts, is dispositive of the matter. See Manning v. Principi, 16 Vet. App. 534 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001). With the issue on appeal here, the law, and not the facts, is dispositive. For that reason VCAA is not applicable so as to require further notice or assistance on this matter. VCAA has no material effect on adjudication of the claim for death pension benefits currently before the Board. See Mason v. Principi, 16 Vet. App. 129 (2002) (VCAA not applicable to nonservice-connected pension claims in which the law and not the evidence was dispositive). In Dela Cruz v. Principi, 15 Vet. App. 143 (2001), the Court held that the enactment of the VCAA does not affect matters on appeal when the question is one limited to statutory interpretation. See also Manning v. Principi, 16 Vet. App. 534, 542 (2002); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Moreover, the appeal arises from the initial award of death pension benefits. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2010). While this case involves death pension, the same theory is applicable. She has already established entitlement to the benefit, and her appeal of the effective date initiates other due process notice provisions. See 38 C.F.R. § 19.26, 19.29. In this case, the earliest possible date permitted by the effective date regulations has been granted, so that an earlier effective date is not legally possible. The appellant does not argue that she filed a claim between the denial in March 1981 and the claim filed in December 2005. In cases such as this, in which a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis, 6 Vet. App. at 430; Dela Cruz, 15 Vet. App. at 149; Mason v. Principi, 16 Vet. App. 129 (2002). Analysis The appellant claims entitlement to death pension benefits effective from August 1996. She believes that she had VA benefits that were discontinued in July 1996 and that the effective date of the award of death pension benefits should be August 1996. Death pension is a benefit payable to a veteran's surviving spouse or child because of the veteran's nonservice-connected death. Basic entitlement exists if (i) the veteran served for ninety days or more during a period of war; or (ii) was, at the time of death, receiving or entitled to receive compensation or retirement pay for a service-connected disability; and (iii) the surviving spouse meets the net worth requirements of 38 C.F.R. § 3.274 and has an annual income not in excess of the maximum annual pension rate specified in 38 C.F.R. §§ 3.23 and 3.24. 38 U.S.C.A. §§ 101(8), 1521(j), 1541(a); 38 C.F.R. §§ 3.3(b)(4). A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.152. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). An informal claim is 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(a). Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. 5110(a) (West 2002); 38 C.F.R. § 3.400. For awards based on claims received between October 1, 1984 and December 9, 2004, the effective date of an award based on an original claim for non service-connected death after separation from service shall be the first day of the month in which the veteran's death occurred if the claim is received within 45 days after the date of the veteran's death; otherwise, it is the date of receipt of the claim. For awards based on claims received on or after December 10, 2004, the effective date of an award based on an original claim for nonservice-connected death after separation from service shall be the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of the veteran's death; otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(c)(3). 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 1 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. A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. When a claim has been filed that meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. 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). The Veteran died in October 1980 from a post-service blunt injury to the head. Prior to his death, the Veteran applied for VA education benefits. In August 1980 his claim was denied because his selected course of study was not approved for veterans benefits at the time. He did not apply for any other VA benefits. The following is the procedural history, following the Veteran's death, of the appellant's claim for VA death related benefits. In November 1980 the appellant filed a VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by Widow/er or Child (Including Accrued Benefits and Death Compensation, Where Applicable). In support of her claim, she provided a copy of an award letter from the Social Security Administration (SSA), indicating that she was entitled to receive SSA "mother's" benefits effective October 1980. A March 1981 letter from the Baltimore RO notified her that her claim for death pension was denied because her countable annual income exceeded the limit provided by law. The letter notified her that if her annual income is reduced or her net worth is materially reduced, she may use the enclosed Statement of Income and Net Worth, VA Form 21-4100, to reapply for death pension benefits. The next communication from the appellant was received on December 23, 2005. She stated that in July 1996 benefits to her and her daughter, J. H., were "cut off," but her "benefits were not supposed to cease" because her daughter attended college from August 1996 to January 1998 and had been enrolled in college since 2003. In August 2006, the RO replied to the appellant, enclosing a VA Form 21-534 for her to reapply for death pension benefits. The appellant's formal claim for death pension benefits was received on October 23, 2006, and she emphasized that her daughter was attending college from August 1996 to January 1998 between the ages of 18 to 23. An SSA inquiry report dated in December 2006 reflected that SSA benefits were suspended or terminated in July 1994. In a report of contact dated in December 2006, the appellant asked the veterans service representative to speak with her daughter, D. H., because she handles all of the appellant's financial business and completed the October 2006 application for VA benefits. D. H. stated that the appellant had not worked for a while. In a December 2006 letter, the RO awarded entitlement to death pension benefits, effective October 23, 2006, the date the appellant's formal application for benefits was received. In a notice of disagreement prepared and signed by D. H., and also signed by the appellant, D. H. asserted that the appellants "benefits ceased in July of 1996. The effective date in this case should have been August of 1996. [The appellant] never remarried; therefore, her benefits should have never stopped." In a second notice of disagreement prepared by D. H. on the same day and also signed by the appellant, D. H. disagreed with the effective date that that her benefits ceased. She stated that she graduated [from high school] in May 1996 and the benefits ceased in July 1996. Then, she attended college beginning in August 1996. She stated that she believed that if she continued her education, she was still supposed to receive benefits. In a March 2008 letter, the RO explained to the appellant that there was no evidence in the claims file showing that she was or is entitled to VA benefits from August 1996. In addition, the RO explained that the daughter's claim for benefits must be denied because there was no evidence that she was receiving dependency benefits from VA for school attendance, despite her claim that her benefits ceased after she graduated from high school in July 1996. Finally, the RO pointed out that the Veteran applied for education benefits in 1980, but the claim was denied, and there was no evidence that he was in possession of any other VA benefits prior to his death. In a report of contact dated in August 2009, the appellant asked the decision review officer (DRO) to speak with her daughter, D. H. The DRO informed D. H. and the appellant that VA laws are very specific as to effective dates, and they told the DRO that neither of them knew to file a claim. The DRO explained that unless a claim is filed, the RO has no knowledge of an intent to seek VA benefits. The DRO also stated that the RO had no evidence that D. H. was receiving dependency benefits from VA for school attendance. Finally, the DRO informed them that an effective date was warranted retroactive to the date the informal claim for death pension benefits was received, but not back to 1996. A substantive appeal signed by the appellant and her daughter and received in December 2009 reiterated their contentions and indicated that they did not know that they could file a claim for VA benefits until they were told by someone. A statement dated in June 2011 from the appellant's representative supported her claim. In summary, the appellant filed an initial claim for death pension benefits in November 1980 one month after the Veteran's death, but her claim was denied in March 1981 due to excessive income. The appellant did not initiate an appeal of the previous determination. Prior unappealed decisions of the RO are final. 38 U.S.C.A. §§ 7104, 7105(c); 38 C.F.R. §§ 3.160(d), 20.302(a). No revision to a prior final decision may be made absent a finding of CUE or a finding of non-finality. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997) (RO decision rendered non-final for insufficient notice); see also Link v. West, 12 Vet. App. 39, 44 (1998) (holding that CUE claim does not exist, as matter of law, where there is no prior final RO decision). The appellant has not alleged that the 1980 decision was the product of clear and unmistakable error (CUE). Indeed, the appellant's argument does not suggest the proper effective date is 1980. Rather, she contends the date should be in June 1996, the date her "benefits" were stopped. On December 23, 2005 the RO received the appellant's new claim for death pension benefits. In December 2006 the RO granted entitlement to death pension benefits, and ultimately assigned a correct effective date of December 23, 2005, based on the date the claim was received. There were no communications sent by the appellant after the March 1981 RO determination - the last final decision on this matter - that could be construed as a new claim for death pension benefits until December 23, 2005 (when the claim now on appeal was received). The Board acknowledges statements from the appellant and her daughter suggesting that she was not aware of her entitlement to VA benefits despite the fact that she originally filed a claim for VA death pension benefits approximately one month after the Veteran died in 1980. However, VA law and regulations require a claim to be filed in order for benefits to be paid to any individual. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). No VA provision allows for an earlier effective date for an award of VA pension based on the claimant's lack-of-notification argument. See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151(b), 3.400(b)(1)(ii)(B); see also Andrews v. Principi, 16 Vet. App. 309, 317 (2002), quoting Rodriguez v. West, 189 F.3d 1351 (Fed.Cir.1999) (nothing in 38 U.S.C.A. §§ 5102 or 7722 indicates, or even suggests, that the Secretary's failure to provide assistance to a claimant justifies ignoring the unequivocal command in 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore). The Board also recognizes that an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security 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 in Social Security Administration (SSA). The receipt of such an application (or copy thereof) by the Department of Veterans Affairs will not preclude a request for any necessary evidence. 38 C.F.R. § 3.153. However, as noted above, the appellant's November 1980 claim was denied due to her income at the time, which consisted of her Social Security benefits. Thus, any application for SSA benefits was clearly dated prior to the RO's March 1981 denial of death pension benefits and the RO's March 1981 denial constitute a denial of any claim for death pension pending at that time. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) ("a reasonably raised claim remains pending until there is . . . an explicit adjudication of a subsequent 'claim' for the same disability"). She did not appeal the March 1981 denial. Further, although she was notified that she could reapply if her income or net worth changed, she did not reapply for death pension benefits until December 2005. Regarding the appellant and her daughter's contentions that one or both of them were previously in receipt of any VA compensation benefits, they appear to be mistaken because the claims file does not include any evidence that either was ever entitled to any VA benefits, including education benefits, or that either had ever filed a claim for any VA benefits other than the appellant's original claim in November 1980. It appears that they may be referring to SSA benefits, which were apparently suspended or terminated in July 1994. Evidence of record reflects this date corresponds with D.H.'s 18th birthday. Accordingly, no further discussion of discontinued VA education benefits is warranted because there is no evidence in the claims file that either the appellant or her daughter had ever applied for any VA education benefits. Moreover, to the extent the appellant's argument is to be construed as showing her entitlement to benefits should begin effective the date her SSA benefits were terminated, it is the date of receipt of the claim for pension that controls, not the date entitlement arises. Thus, even if her income had been within death pension limits upon termination of her SSA benefits, a claim for VA benefits based on her changed income status still needed to be filed with VA. In summary, the original claim for death pension was denied in a March 1981 RO decision, which was not appealed and is final. The next correspondence in the record from the appellant was received on December 23, 2005. As noted above, the effective date of an award of pension based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. 5110(a) (West 2002); 38 C.F.R. § 3.400. Here, the statutory and regulatory provisions warrant an effective date of December 23, 2005. Accordingly, for the reasons and bases discussed above, the appellant's appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date earlier than December 23, 2005 for the grant of death pension benefits is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs