Citation Nr: 1316285	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  13-03 897	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to an effective date earlier than November 3, 2008 for the grant of Dependency and Indemnity Compensation (DIC) benefits pursuant to the Veterans Benefits Act of 1998. 


ATTORNEY FOR THE BOARD

Tiffany Berry, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from March 1944 to February 1946.  The Veteran was determined to be missing in action (MIA) on February [redacted], 1945, and presumed dead on February [redacted], 1946.  The Appellant is the Veteran's surviving spouse.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a November 2011 administrative decision by the Department of Veterans Affairs (VA) Manila, Republic of the Philippines, Regional Office (RO).

The Board also notes the record is unclear as to the exact dates the Veteran was determined to be MIA and presumed dead as there appear to be conflicting dates.  However, since these dates do not affect the outcome of the issue on appeal, the Board will accept the dates set forth in the RO's administrative decision and statement of the case, as indicated above.  

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 was determined to be MIA on February [redacted], 1945 and presumed dead on February [redacted], 1946. 

2.  The Appellant filed a claim for DIC benefits in June 1946.  However, a May 1957 decision determined that the Appellant had remarried on July [redacted], 1947.  Therefore, she was not entitled to DIC benefits.  

3.  The Appellant was again denied entitlement to DIC benefits in April 1976; she did not appeal this decision and it became final.  

4.  The Appellant's second marriage was terminated in August 1997, when her second husband died.  She filed another claim to reopen her claim of entitlement to DIC benefits on November 3, 2009.  This claim was granted by the RO, with an effective date of November 3, 2008.  


CONCLUSION OF LAW

The criteria for the assignment of an effective date earlier than November 3, 2008, for DIC benefits, have not been met.  38 U.S.C.A. §§ 103(d); 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.114, 3.400 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act (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 & Supp. 2012)) redefined VA's duty to assist the appellant 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) (2012).

The notice requirements of the VCAA require VA to notify the Veteran 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, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the 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.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

Here, the earlier effective date claims arise from the Appellant's disagreement with the initial effective date assigned following the grant entitlement to Dependency and Indemnity Compensation (DIC) benefits pursuant to the Veterans Benefits Act of 1998.  Because DIC was granted, the claim was substantiated and no additional notice is required as to the downstream issue involving entitlement to an earlier effective date.  Any defect in the notice is deemed not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The Board also finds that VA has fulfilled the duty to assist provisions of the VCAA.  Although the Veteran's service treatment records have not been associated with the claims folder, the Board finds they are not relevant to the salient legal question of when the Appellant filed her claim for DIC benefits.  Further, the Appellant has pointed to no other pertinent evidence which has not been obtained.  As the salient issue does not turn on medical evidence, there is no need to obtain a VA compensation examination or medical opinion.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

Thus, the Board concludes that no further evidentiary development is required.  The Board will, therefore, proceed to consider the following issue on appeal, based on the evidence of record.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 


II.  Entitlement to an Earlier Effective Date

The Appellant argues that she is entitled to an effective date earlier than November 3, 2008 for the grant of DIC benefits pursuant to the Veterans Benefit Act of 1998.  Specifically, she argues that because her second marriage terminated in August 1997, over one year prior to the October 1, 1998 enactment of the Veterans Benefit Act of 1998, she is entitled DIC benefits beginning on October 1, 1998.  

The general statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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 C.F.R. § 3.400 (2012). 

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (2012).  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) (2012).  "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) (2012). 

The law and regulations provide that VA shall pay DIC benefits to the surviving spouse, children, and parents of a Veteran who died on active duty.  38 U.S.C.A. §§ 1301, 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5 (2012). 

The term "surviving spouse" means a person of the opposite sex who was the spouse of a veteran at the time of the veteran's death, and who lived with the Veteran continuously from the date of marriage to the date of the Veteran's death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse) and who has not remarried or (in cases not involving remarriage) has not since the death of the Veteran lived with another person and held herself out openly to the public to be the spouse of such other person.  38 U.S.C.A. § 101(3), (31) (West 2002); 38 C.F.R. § 3.50 (c) (2012). 

Prior to 1970, a Veteran's widow who remarried lost all VA benefits.  See Lyman v. Brown, 5 Vet. App. 194 (1993).  In 1970, Congress amended section 103 of title 38, United States Code, so that "the remarriage of a widow of a Veteran shall not bar the furnishing of benefits to her as the widow of the veteran if the remarriage has been terminated by death or has been dissolved by . . . divorce. . . ." Pub. L. No. 91-376, § 4, 84 Stat. 787, 789 (1970); 38 U.S.C.A. § 103(d).  At the same time, Congress amended section 3010 [now section 5110] of title 38, United States Code, by adding subsection (l) which stated, "The effective date of an award of benefits to a widow based upon termination of a remarriage by death or divorce shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefore is received within one year from such termination."  Pub. L. No. 91-376, § 7, 84 Stat. 787, 790 (1970); 38 U.S.C.A. § 5110(l).  The amendments took effect on January 1, 1971. Pub. L. No. 91-376, § 7, 84 Stat. 787, 790 (1970). 

Thus, prior to November 1990, the provisions of 38 U.S.C.A. § 103(d) and 38 C.F.R. § 3.55(a)(4) allowed for reinstatement of VA death benefits to surviving spouses whose benefits had been terminated because of remarriage, if that remarriage was terminated by a death, divorce, annulment, or if the remarriage was declared void.  These provisions were amended by the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8004, 104 Stat. 1388 -348 (Nov. 5, 1990), to create a permanent bar to reinstatement of VA death benefits for those surviving spouses whose disqualifying relationship had been terminated and whose claim for reinstatement of benefits was not filed before November 1, 1990.  This statutory bar was later amended to allow reinstatement of VA death benefits for those surviving spouses whose disqualifying remarriages were terminated prior to November 1, 1990.  See Section 502 of the Veterans' Benefits Programs Improvement Act of 1991, Public Law 102-86. 

Thereafter, on June 9, 1998, Section 8207 of HR 2400 (Public Law 105-178) was signed.  This bill added a new subsection (e) to 38 U.S.C. § 1311, which provides that remarriage shall not bar a surviving spouse's eligibility for DIC if the remarriage is terminated by death, divorce, or annulment.  In effect, this provision reinstates the pre-1990 rules for reinstatement of eligibility for DIC benefits. 

When an application for DIC benefits is received within one year of the date of death, the effective date of an award of DIC shall be the first day of the month in which the death occurred.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(c) (2012).  Section 5110(a) of title 38, United States Code, provides: "Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of . . . [DIC] . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." Section 5110(g) of title 38, United States Code, "specifically" provides: 

However, where DIC is awarded or increased pursuant to a liberalizing law or VA issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue.  In no event shall such award or increase be retroactive for more than one year from the date of application therefore or the date of administrative determination of entitlement, whichever is earlier.  38 U.S.C. § 5110(g); see 38 C.F.R. § 3.114(a).  Thus, section 5110(g) constitutes a specific exception to the section 5110(a) stricture that an effective date of a DIC award "shall not be earlier than the date of receipt of application therefore."  If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request.  38 C.F.R. § 3.114(a)(3).  In order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.  38 C.F.R. §§ 3.114(a), 3.400(p); see also 38 U.S.C.A. § 5110(g) (West 2002). 

As indicated above, the Appellant is the widow of the Veteran who went missing in action in February 1945 and was declared dead in February 1946.  Following the death of the Veteran, the appellant filed for DIC benefits in the 1950s and 1970s, but was ineligible for such benefits due to her remarriage.  She did not file another claim for DIC until November 3, 2009, when she submitted her second husband's death certificate dated in August 1997.  The Appellant was awarded an initial grant of DIC benefits effective November 3, 2008, one year prior to the receipt of her claim.  The Appellant argues that since she met the requirements for DIC at the time of passage of the 1998 liberalizing law, the effective date for her DIC entitlement should be the effective date of the 1998 liberalizing law.  However, the only way for the Appellant to be awarded an effective date for DIC corresponding to the effective date of the liberalizing law would be if she filed a claim for DIC, or if VA on its own initiative reviewed a claim for DIC, within a year of the effective date of the liberalizing law.  38 C.F.R. § 3.114(a)(1).  In the instant case, the liberalizing law was effective in 1998 and the Appellant did not file a claim for DIC until 2009.  Additionally, there is no evidence that a DIC claim was reviewed on the initiative of VA within a year following the effective date of the 1998 liberalizing law.  As such, the RO issued the correct effective date in that they issued an effective date of one year prior to the date of the Appellant's claim since she met all of the requirements for the benefit at the time of the effective date of the liberalizing law and continuously did so until the date of her 2009 claim.  38 C.F.R. § 3.114(a)(3).

In reaching this decision, the Board does not wish in any way to diminish the Veteran's heroic service.  Although the Board is sympathetic to the Appellant's claim, it is constrained to follow the specific provisions of law.  See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  As such, the claim of entitlement to an effective date prior to November 3, 2008, for the grant of DIC benefits is denied.  


ORDER

An effective date prior to November 8, 2008, for the grant of DIC benefits, is denied.



____________________________________________
M .N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs