Citation Nr: 1303543	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  11-31 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date earlier than May 18, 2009, for the grant of entitlement to Dependency and Indemnity Compensation (DIC).


REPRESENTATION

Appellant represented by:	Frank A. Pearsall


ATTORNEY FOR THE BOARD

L. Jeng, Counsel



INTRODUCTION

The Veteran served on active duty from October 1944 to February 1946.  He died in October 2002.  The appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the appellant's claim.  A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran died on October [redacted], 2002. 

2.  The appellant filed an application form for DIC benefits on May 18, 2009.

3.  There is no evidence that the appellant filed for Social Security Administration (SSA) survivor benefits at the time of the Veteran's death. 




CONCLUSION OF LAW

The assignment of an effective date earlier than May 18, 2009, for the award of DIC benefits is not warranted.  38 U.S.C.A. §§ 5105, 5110 (West 2002); 38 C.F.R. 
§§ 3.153, 3.155, 3.400 (2012). 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist 

The appellant's claim arises from her disagreement with the effective date assigned following the grant of entitlement to DIC benefits.  Once a claim is granted it is substantiated and additional notice is not required.  Thus, any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 

As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the appellant, and for which she authorized VA to request, have been associated with the claims folder.  38 U.S.C.A. § 5103A (West 2002).  As will be discussed in detail below, the RO has determined that all efforts to obtain pertinent SSA records have been exhausted and further attempts would be futile.  Given the thorough efforts put forth by the RO to obtain these records, the Board finds that additional efforts would be pointless.  See Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (noting that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.15, and that the appellant will not be prejudiced as a result of the Board's adjudication of her claim. 


Earlier Effective Date 

The effective date for the grant of service-connected death benefits based upon an original claim is 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 death.  If the claim is based upon an attempt to reopen the claim or is received more than one year after the date of death, it will be the date of receipt of the claim.  38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(c)(2) (2012). 

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) (2012). 

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, 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 an informal claim must identify the benefit 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 after 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 (2012); Norris v. West, 12 Vet. App. 413 (1999). 

According to the death certificate, the Veteran died on October [redacted], 2002.  In this case, the appellant's application for DIC benefits (VA Form 21-534) was received by the RO on May 18, 2009.  The application was clearly not received within one year of the Veteran's death.  Thus, the proper effective date would be May 18, 2009, because that is the date of receipt of the application for DIC benefits. 

Despite the date of the receipt of the application, the appellant asserts that she filed a claim for SSA survivor benefits at the time of the Veteran's death.  Therefore, she contends that an earlier effective date is warranted. 

In this regard, the Board notes that claims filed with the SSA are generally considered to be a claim for VA death benefits and considered to have been received by VA as of the date of receipt by SSA. See 38 U.S.C.A. § 5105 (West 2002); 38 C.F.R. § 3.153 (2012); see also Schoolman v. West, 12 Vet. App. 307 (1999); Van Valkenburg v. Shinseki, 23 Vet. App. 113 (2009). 

In this case, in a May 2012 memorandum, the RO made a formal finding of unavailability of SSA records indicating that it had exhausted all efforts to obtain records.  The RO indicated that in May 2012, it called the local SSA office to determine whether the Veteran applied for the Veteran's SSA benefits as a survivor.  The SSA representative verified that the appellant had been in receipt of SSA benefits since October 1984 and was automatically switched to her husband's higher rate of SSA benefits upon his death in October 2002.  The SSA representative was unable to confirm whether the appellant applied for the benefit, and their records showed that there was no evidence that the appellant ever filed for this benefit, or if a VA Form 21-4182 was ever completed.  

There is no dispute that the appellant did not file her application for DIC until May 2009.  The only issue is whether she filed a claim for survivor benefits with SSA.  However, there is simply no evidence that she filed a claim with SSA at the time of the Veteran's death or at any time, but rather the evidence reflects that her benefits were automatically increased at the time of the Veteran's death.  Because the application for DIC was received more than one year after the Veteran's death, date of receipt of the application for DIC benefits, May 18, 2009, is the appropriate effective date for the award.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. 
§ 3.400(c) (2) (2012).  Accordingly, an earlier effective date is not warranted. 

ORDER

Entitlement to an effective date earlier than May 18, 2009, for the grant of entitlement to DIC is denied.




____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs