Citation Nr: 1312977 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 13-01 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to June 25, 2007 for the award of service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from January 1955 to December 1959. The appellant is his surviving spouse. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 Appellant's initial 2002 claim of entitlement to service connection for the cause of the Veteran's death was denied by the Board in June 2005 and her appeal found to be abandoned by the CAVC in October 2007. 2. The Appellant filed to reopen her claim of entitlement to service connection for the cause of the Veteran's death on June 25, 2007. 3. A February 2012 rating decision granted the Appellant service connection for the cause of the Veteran's death. CONCLUSION OF LAW The criteria for an effective date prior to June 25, 2007 for a grant of service connection for the cause of the veteran's death are not met as a matter of law. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that she is entitled to an effective date prior to June 25, 2007 for entitlement to death benefits. She argues that she submitted her claim for service connection for cause of death in 2002, and, therefore, that should be the effective date of her benefit. The law and regulations governing the appropriate effective date for service connection are set out in 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400 and provide generally that the effective date for disability compensation based on service connection established in a reopened claim after final disallowance shall be the later of the date of the claim or the date entitlement arose. In this case, the Appellant's claim for service connection for cause of death filed in 2002 was denied by the RO in a July 2002 decision and denied by the Board in a July 2005 decision. In October 2007 the CAVC issued a decision finding that the Appellant's claim for service connection for cause of death was abandoned as she did not address the issue in her principal brief and specifically noted in her informal brief that she was only appealing her accrued benefits claim. Thus, the July 2005 decision by the Board became final. The Appellant did not appeal the CAVC decision to the U.S. Court of Appeals for the Federal Circuit. On June 25, 2007, the VA received a new VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable) from the Appellant. Importantly, although the Appellant marked on the form that she was not claiming the Veteran's cause of death was due to service, the RO determined that, considering the additional documentation she subsequently submitted and giving her the benefit of the doubt, it was her intention to reopen her claim for service connection for cause of death at that time. In February 2012 the RO determined that the Appellant had submitted new and material evidence to reopen her claim and that her claim should be granted. The RO granted service connection for cause of death and set June 25, 2007 as the effective date. The Appellant argues that the award of service connection for cause of death should be made effective from when she filed her initial claim in 2002. The applicable law and regulations provide that the effective date of service connection will be the later of the date of receipt of claim or the date entitlement arose if the claim is received more than one year after the veteran's discharge from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r). See also Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). In this case, the July 2005 decision by the Board denying the Appellant's 2002 claim became final when the CAVC found she had abandoned her claim. The RO concluded that the Veteran filed her new claim based on new and material evidence on June 25, 2007 when she submitted her VA Form 21-534. That reopened claim was then granted. The Board has considered whether a pending claim, including an informal claim under 38 C.F.R. § 3.155(a), existed prior to June 25, 2007. No earlier claim to reopen a claim for service connection for cause of death being found, the Board concludes that June 25, 2007 is the proper effective date as it is the date of receipt of the new claim based on new and material evidence. Duties to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Appellant's claim for an earlier effective date is a downstream issue following the grant of service connection for cause of death. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). However, the provisions of 38 U.S.C.A. § 7105(d) do require VA to issue a Statement of the Case (SOC). VAOPGCPREC 8-2003. The Appellant was provided a VCAA letter in April 2009 prior to the February 2012 rating decision granting service connection and provided a SOC in December 2012 citing the applicable statutes and regulations governing the assignment of effective dates and discussing the reasons and bases for not assigning an earlier effective date in this case. VA also has a duty to assist the with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Appellant asserts that an earlier effective date is warranted based on the filing of her original claim for service connection for cause of death, which is of record. Significantly, the Appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No examination or obtaining of additional medical records is warranted to address the issue of earlier effective date, because the question of effective date here turns on the date of the receipt of the Appellant's claim, so that no medical evidence can change the outcome. Thus, the VA has fulfilled its duty to assist by obtaining all relevant evidence in support of the Appellant's claim. ORDER An effective date earlier than June 25, 2007 for the award of service connection for the cause of the veteran's death is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs