Citation Nr: 1314460	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  10-36 112A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to nonservice-connected death pension.


REPRESENTATION

Appellant represented by:	American Legion


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The appellant is the surviving spouse of a Veteran who served on active duty from February 1953 to February 1955.  The Veteran died in May 1987.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO).  In July 2012, a videoconference hearing was held before the undersigned; a transcript is of record.  Subsequently, entitlement to special monthly pension based on the need for aid and attendance was granted in an August 2012 rating decision, effective December 29, 2011.  

Review of the record indicates that the Appellant has not filed an NOD as to the effective date of the award of pension, which is a jurisdictional prerequisite for the Board to review the claim.  See Manlincon v. West, 12 Vet. App. 238 (1999).  The Appellant's July 2012 testimony cannot serve as an NOD as it was made prior to the August 2012 rating decision granting the claim and as an Appellant's hearing testimony before the Board does not meet the requirements for an NOD.  Compare Tomlin v. Brown, 5 Vet. App. 355 (1993) (statement of disagreement at VA RO hearing, when reduced to writing by hearing transcript, meets requirement that Notice of Disagreement be in writing as of date of certification of transcript) and Beyrle v. Brown, 9 Vet. App. 24 (1996) (holding that a Veteran's hearing testimony before the Board does not meet the requirements for an NOD because such testimony (even if given within the one-year NOD filing period) was taken before the Board and not the RO, and it did not serve to trigger or initiate appellate review of the claim or claims decided).  If the Appellant desires to disagree with the effective date of her pension award, she should contact the RO.


FINDING OF FACT

In an August 2012 rating decision, VA granted entitlement to special monthly pension based on the need for aid and attendance.


CONCLUSION OF LAW

Because the August 2012 award of special monthly pension based on the need for aid and attendance represent a full grant of the benefits sought on appeal with respect to the pension claim, there remains no case or controversy with respect to that matter over which the Board may exercise jurisdiction.  38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.  38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a).

One of the principal functions of the Board is to make determinations of appellate jurisdiction.  38 C.F.R. § 19.4.  The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue.  38 C.F.R. § 20.101(d).

Although the Appellant perfected an appeal to the Board with respect to the denial of nonservice-connected pension, in a rating decision dated in August 2012, this nonservice-connected pension claim was granted, and the Appellant has not to this point disagreed with the assigned effective or rating for that award.

Under these circumstances, the Board finds that this claim on appeal has been granted by the decision of a lower adjudicative body, fully resolving the Appellant's appeal as to that claim.  The Appellant was notified of this fact at the time of August 2012 rating decision, and has not in any way disagreed with any RO determination with respect to either the assigned effective date or rating.  Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4.  In the absence of any justiciable question, the appeal as to the claim for nonservice-connected pension must be dismissed.


ORDER

The appeal as to the claim for nonservice-connected pension benefits is dismissed.



____________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs