Citation Nr: 1314443 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-17 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an earlier effective date prior to December 4, 2007, for the grant of non-service-connected VA disability pension benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from November 1970 to October 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In June 2009, the Veteran requested a hearing at the RO before a Veterans Law Judge (Travel Board Hearing). In September 2009, the Veteran requested a videoconference hearing instead of a Travel Board Hearing. The Veteran was scheduled to appear for a videoconference hearing in August 2011. However, he failed to report for this hearing and provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. FINDING OF FACT The August 16, 2007, communications from the Veteran constitute an informal claim for nonservice-connected pension benefits. CONCLUSION OF LAW An effective date for the grant of entitlement to non-service-connected disability pension benefits of August 16, 2007, is warranted. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist VA has duties to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). The notice should address all elements of the claim, including the "downstream" disability rating and effective date elements. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for non-service-connected pension benefits was granted, effective December 4, 2007. Where the claim has been granted and an effective date assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose the notice was intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), instead of issuing an additional notice letter in this situation concerning the "downstream" effective date element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case if the disagreement is not resolved. The RO sent the Veteran this required statement of the case in April 2009, addressing the "downstream" effective date element of his claim - citing the applicable statutes and regulations and discussing the reasons and bases for assigning the effective date. 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). The Board also finds that all necessary development of the downstream earlier effective date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. II. Analysis Generally, the effective date of an award of pension will be the date of receipt of the claim. 38 U.S.C.A. § 5110(a). An award of a disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. § 3.400(b)(1) (2012). For claims received on or after October 1, 1984, as in this case, the effective date of an award of disability pension is the date of receipt of claim. 38 C.F.R. § 3.400(b)(1)(ii). 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). A claim by a Veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a) (2012). Where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the Veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the Veteran became permanently and totally disabled. Additional requirements for entitlement to a retroactive pension award are contained in § 3.400(b) of this part. 38 C.F.R. § 3.151(b). If within one year from the date on which the Veteran became permanently and totally disabled, he files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of his willful misconduct, was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which he became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which he became permanently and totally disabled, whichever is to his advantage. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented filing the claim. 38 C.F.R. § 3.400(b)(1)(ii)(B). Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). "Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant 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) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). On July 26, 2006, the RO received a formal claim for service connection for nine disabilities. On the part of the application, VA Form 21-526, regarding entitlement to pension benefits, Part D, the notation "N/A," understood to mean not applicable, was entered. On August 16, 2007, the RO received two Authorization and Consent to Release Information forms from the Veteran in which he stated that he was unable to work, filed for Social Security Administration (SSA) disability insurance benefits, had been denied three times, and had a hearing scheduled in early 2009. In an October 2007 decision, the RO denied eight of the claims for service connection, and denied the petition to reopen the claim of service connection for the ninth disability. The Veteran did not appeal these decisions. In December 2007, the RO received a claim from the Veteran's representative for non-service-connected disability pension. The representative enclosed a copy of an income-net worth and employment statement (VA Form 21-527) signed by the Veteran in which he reported that he last worked in June 2006. The RO awarded the Veteran non-service-connected disability pension benefits based on the date of receipt of the claim for pension, in December 2007. The first formal claim seeking pension benefits was filed by the Veteran in December 2007. However, a review of the correspondence received from the Veteran reveals that the August 16, 2007, correspondence can be considered as an informal claim for non-service-connected pension benefits, as he indicated that he could not work due to various medical disabilities. See 38 C.F.R. § 3.155(a). There is no correspondence received earlier than that date from the Veteran, or his health care providers, indicating that the Veteran was unable to work due to medical disabilities. Therefore, he is entitled to an earlier effective date of August 16, 2007, for the grant of nonservice-connected pension benefits. The Veteran essentially contends, however, that the representative that filed his July 26, 2006, formal claim for service connection for nine disabilities, should have requested entitlement to nonservice-connected pension benefits instead, and that, but for this mistake, he would have received this benefit effective July 2006. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Although the Veteran contends that his representative filed the wrong claim, service connection claims, instead of a claim for nonservice-connected pension benefits, the record does not show, nor does the Veteran contend, that the VA mislead him in any way. The VA is, of course, not responsible for the errors or misunderstandings of the agent of a claimant. Brown v. Brown, 8 Vet. App. 40, 43 (1995). There is no legal authority for taking such into account in any award action. In addition, the Veteran has not claimed that from June 2006 to August 2007 that he was so incapacitated for a period of 30 days or more that it prevented him from filing a disability pension claim. See 38 C.F.R. § 3.400(b)(1)(ii)(B). Therefore, entitlement to an even earlier effective date than August 16, 2007, is not warranted. ORDER Entitlement to an earlier effective date of August 16, 2007, for the award of non-service-connected pension benefits is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs