Citation Nr: 1321389 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-48 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date prior to October 17, 2005 for the grant of benefits on the basis of A.L.C.'s permanent incapacity for self-support as the Veteran's helpless child, to include consideration of dependency and indemnity compensation (DIC) and accrued benefit entitlements. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from November 1968 to November 1970. The appellant is the legal guardian of the Veteran's surviving child "A.L.C." This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The appellant testified before the undersigned Veterans Law Judge at the RO in March 2013. A transcript of this hearing has been associated with the claims-file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Board observes that during the course of this appeal, the appellant also appealed the additional issues: (1) establishing A.L.C.'s permanent incapacity for self-support, and (2) entitlement to service connection for the cause of the Veteran's death. Both of those issues were resolved with the RO's March 2009 rating decision fully granting those claims; the current appeal arises from the appellant's disagreement with the assignment of an effective date for benefits awarded in the March 2009 RO rating decision. The Board has not only reviewed the Veteran's physical claims file but also the corresponding file on the "Virtual VA" system to ensure 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 Veteran died in September 2005. 2. A claim for DIC benefits based upon the assertion of A.L.C.'s status as the Veteran's helpless child was filed on October 17, 2005. 3. In RO rating decisions dated in October 2005 and March 2009, the RO granted DIC under 38 U.S.C.A. § 1318 (in 2005) and granted service connection for the cause of the Veteran's death (in 2009), assigning an effective date of October 17, 2005 for the establishment of A.L.C.'s status as the Veteran's helpless child. 4. In October 1994, the RO notified the Veteran of its determination that A.L.C. no longer qualified as a dependent child for VA purposes as of June 1, 1994. The RO notified the Veteran of procedural and appellate rights and notified the Veteran of the need to submit additional evidence within one year to attempt to establish that A.L.C. was a helpless child for VA purposes; the Veteran did not appeal or submit pertinent evidence following this notice. 5. The Veteran did not have any claim pending at the time of his death regarding A.L.C.'s status for VA benefit purposes. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 1, 2005, but no earlier, for the grant of DIC benefits based on A.L.C.'s status as the Veteran's helpless child have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.159, 3.400 (2012). 2. The October 1994 RO determination concerning the status of the Veteran's dependent children is final. 38 U.S.C.A. § 7105 (West 2002). 3. Any claim to establish A.L.C. as a helpless child that was pending in connection with the instructions provided by the RO to the Veteran in October 1994 was abandoned by the Veteran when he failed to reply within a year. 38 C.F.R. § 3.158(a). 4. For accrued benefits purposes, the criteria for entitlement to benefits based on A.L.C.'s status as the Veteran's helpless child have not been met. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Board notes that the Veterans Claims Assistance Act of 2000, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 and 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a), provides, among other things, for notice and assistance to claimants under certain circumstances. Congress, in enacting the statute, noted the importance of balancing the duty to assist with "the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim." Mason v. Principi, 16 Vet. App. 129, 132 (2002) (quoting 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller)). When the law and not the evidence is dispositive of the claim, the VCAA is not applicable. See Mason, 16 Vet. App. at 132 (VCAA not applicable to a claim for nonservice-connected pension when the claimant did not serve on active duty during a period of war); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000) (VCAA did not affect a federal statute that prohibited payment of interest on past due benefits), aff'd, 28 F.3d 1384 (Fed. Cir. 2002). With respect to the issue on appeal, VCAA notice is not necessary because the outcome of an earlier effective date claim depends on documents which are already contained in the VA claims file. The Court has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). The decision in this case does not rely upon any facts in dispute; the appeal is decided entirely through application of law to determine the proper effective date for assignment on the basis of uncontested facts concerning the details of the 1994 RO determination of A.L.C.'s status with respect to the Veteran's VA benefits. The Board's decision in this case finds that an effective date corresponding to the date of the Veteran's death is warranted; any grant of benefits based upon a period prior to the Veteran's death must arise from an accrued benefits theory which, as discussed below, can only be based upon the evidence of record at the time of the Veteran's death. The effective date assigned is the earliest date allowable under the law, corresponding to the time of the Veteran's death with no pertinent claim pending at the time of his death. In sum, as the law is dispositive with respect to the issue on appeal seeking assignment of an earlier effective date, the VCAA is not applicable. Analysis The Veteran died on September [redacted], 2005. On October 17, 2005, VA received a claim for benefits including for service connection for the cause of the Veteran's death, for Dependency and Indemnity Compensation (DIC), and for accrued benefits. This claim was filed by the Veteran's surviving son; it further identified the Veteran's surviving children, including specifically A.L.C. and including specifically the fact that A.L.C. is "seriously disabled" in the appropriate section of the claims form. In an October 2005 RO rating decision, the RO granted DIC under 38 U.S.C.A. § 1318 and denied entitlement to accrued benefits. In that regard, the term dependency and indemnity compensation (DIC) means a monthly payment made by the Department of Veterans Affairs to a surviving spouse, child, or parent because of a service-connected death occurring after December 31, 1956. In a June 2006 RO rating decision, the RO denied service connection for the cause of the Veteran's death and denied the appellant's claim seeking to establish permanent incapacity for self-support for A.L.C., the Veteran's daughter. The appellant, who is A.L.C.'s guardian, appealed these determinations. In a March 2009 rating decision, the RO granted entitlement to service connection for the cause of the Veteran's death, with an effective date of October 17, 2005. The March 2009 RO rating decision also found that the Veteran's daughter, A.L.C., was established to be permanently incapable of self-support as of the time of her 18th birthday for VA benefit purposes; this established that A.L.C. may be considered the Veteran's "child" for VA benefit purposes. In May 2009, the appellant explained that she disagreed with the March 2009 rating decision to the extent that she was "asking for reconsideration of [A.L.C.]'s claim and for an earlier effective date." The appellant explained that the Veteran "began a claim for [A.L.C.] in the 90's. [The Veteran] was unable to continue this claim due to his disability." The appellant asserted that "[A.L.C.] has been helpless since Age 3...." The March 2009 decision established recognition of A.L.C. as a "child" as defined under 38 U.S.C.A. § 101(4)(A)(ii), on the basis that A.L.C. became permanently incapable of self-support before attaining the age of 18 years. See 38 C.F.R. § 3.356. For purposes of determining eligibility as a claimant under Title 38, a "child" is a person who must be unmarried and who must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. Pursuant to 38 C.F.R. § 3.356(a), a child must be shown to be permanently incapable of self-support by reason of mental or physical defect at the date of attaining the age of 18 years. The focus of analysis must be on the individual's condition at the time of his or her 18th birthday. Dobson v. Brown, 4 Vet. App. 443, 445 (1993). It is the condition at that specific point in time which determines whether entitlement to the status of "child" should be granted. The March 2009 RO rating decision has established, for VA purposes, that A.L.C. was permanently incapable of self-support by reason of mental or physical defect at the date of her 18th birthday. The effective date assigned in connection with that grant was October 17, 2005, which was identified as the date of the filing of the claim for the benefit. The appellant seeks to establish an earlier effective date for benefits due in connection with A.L.C.'s "helpless child" status, and she has clearly explained her contention: the appellant asserts that the Veteran filed a claim during his lifetime to establish that A.L.C. be recognized as his helpless child. The appellant's presentation and testimony at the March 2013 Board hearing further clarified that this appeal is based upon a contention that the Veteran's submissions to VA in 1994 raised a claim to establish A.L.C. as a helpless child and that the claim was never adjudicated during his lifetime. If a claimant files an application for DIC benefits within one year after the Veteran's death, then the effective date is the first day of the month in which the Veteran died. 38 U.S.C.A. § 5110(d)(1). If no such application is filed or could be construed to have been filed within one year after the Veteran's death, then the effective date will be the date of receipt of the claim. 38 U.S.C.A. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). In the Board's view, the assertion that A.L.C. is the Veteran's helpless child was reasonably part and parcel of the October 2005 DIC claim. The October 2005 DIC claim was filed within one year after the Veteran's death. Therefore, the Board finds that the correct effective date for the DIC benefits associated with A.L.C.'s status as the Veteran's helpless child is the first day of the month in which the Veteran died: September 1, 2005. To this extent, the Board finds that a partial grant of the appellant's appeal is warranted. Any effective date associated with DIC benefits cannot be any earlier, because such would be prior to the Veteran's death. DIC benefits are not applicable prior to the date of the Veteran's death. Therefore, September 1, 2005, is the appropriate effective date with regard to the DIC benefits portion of this appeal. See 38 C.F.R. § 3.400(c)(4)(ii). Regardless of any questions of A.L.C.'s status and the effective date for establishment of such status, the award of certain benefits arising from the death of the Veteran (DIC benefits) cannot be effective prior to the death of the Veteran in September 2005. Although there has been some ambiguity in the characterization of the issue presented to the Board on appeal, it does not appear that the appellant's contentions are limited to revising the effective date of the award specifically predicated upon the Veteran's death. The crux of the appellant's claim seeks benefits alleged to have been due during the Veteran's lifetime. Carefully considering the appellant's express contentions, this appeal seeks to establish that A.L.C. should have been recognized as the Veteran's helpless child during the Veteran's lifetime, on the basis of a claim in 1994, and that additional benefits were due in connection with such recognition. The Board view this as essentially raising a claim of entitlement to establishment of permanent incapacity for self-support for A.L.C. as the helpless child of the Veteran. The Board recognizes that the RO's October 2005 rating decision denied entitlement to accrued benefits in general terms. The Board finds that the appellant's continuing pursuit of DIC and accrued benefits linked to A.L.C.'s "helpless child" status, pursued following the October 2005 rating decision and through the eventual appeal from the RO's grant of "helpless child" status for A.L.C., has effectively brought the claim for establishment of "helpless child" status for accrued benefits purposes into appellate status before the Board. Upon the death of a veteran, periodic monetary benefits to which that individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of his death ("accrued benefits") and due and unpaid for the period not to exceed two years, shall, upon the death of such individual be paid to the living person first listed as follows: (1) his spouse, (2) his children (in equal shares), (3) his dependent parents (in equal shares). 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). In order for a claimant to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating decision." Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998)). The Board emphasizes that by statute, entitlement to accrued benefits must be based on evidence in the file at the time of death, or evidence, such as VA records, deemed to be of record at that time. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Zevalkink v. Brown, 6 Vet. App. 483 (1994). The Board notes that the statute was amended in January 2003 to eliminate the two-year restriction on the payment of accrued benefits. The revision to the statute, however, applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See the Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Because the Veteran's death occurred in September 2005, the appellant's claim must be considered under the version of 38 U.S.C.A. § 5121(a) currently in effect, which eliminates the two-year restriction on the payment of accrued benefits. Applications for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000 (c). A claim for death pension, compensation, or dependency and indemnity compensation (DIC) by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.152(b). In this case, the appellant timely raised a claim for accrued benefits in October 2005, and the Board finds that the issue on appeal essentially arises from that timely claim. The effective date for the grant of compensation, including helpless child benefits, based upon an original claim, or a claim reopened after final disallowance is the date entitlement arose if the claim is received within one year after the date of entitlement; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2007). 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) (2007). 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 (2007); Norris v. West, 12 Vet. App. 413, 421 (1999). There is no dispute as to the fact that A.L.C. was permanently incapable of self-support as of the time of her 18th birthday for VA benefit purposes; this finding has been established by the RO's June 2006 rating decision. However, consideration of the question of A.L.C.'s incapacity for accrued benefits purposes must be based on evidence in the file at the date of death. Although some of the evidence leading to the RO's finding of A.L.C.'s permanent incapacity was added to the file after the Veteran's death, such evidence largely features medical opinions explaining the significance and the permanence of A.L.C.'s mental disabilities which were already well documented prior to the Veteran's death, including documentation of A.L.C.'s special education requirements in high school due to mental disability and evidence that she was already considered disabled by the Social Security Administration (SSA) at least as of May 1994. However, even assuming for the sake of the appellant's argument that the evidence of record at the time of the Veteran's death showed that A.L.C. was permanently incapable of self-support before her 18th birthday, the Board is unable to grant accrued benefits in this appeal. The critical question in this case is whether any claim to establish A.L.C.'s status as a helpless child was pending at the time of the Veteran's death. The appellant clearly and specifically contends that such a claim had been pending since 1994. Without finding that such a claim was in fact pending at the time of the Veteran's death, the Board can find no valid legal basis for entitlement to the sought accrued benefits in this case. A.L.C.'s 18th birthday is shown to have occurred in 1990 and this fact is not in dispute. As clarified during the March 2013 Board hearing, the appellant explains that VA made payments for A.L.C. as a dependent child of the Veteran until "[t]hey stopped it because she was turning -- she graduated high school in '94...." Accordingly, the appellant's contentions concern establishing an effective date for A.L.C.'s currently recognized helpless child status dating back to 1994. The appellant contends that documentation submitted to VA in 1994 sufficiently asserted that A.L.C. was permanently incapable of self-support by reason of mental defect such that a claim to establish helpless child status was raised. The appellant argues that the RO did not adjudicate such a claim nor consider the submitted information when terminating dependent child payments on the basis of A.L.C. graduating high school, and the RO did not otherwise adjudicate such a claim prior to the appellant's later October 2005 claim leading to this appeal. The Board's review of the claims-file reveals pertinent documentation and correspondence from 1994 leading the Board to conclude that the RO did consider the information submitted by the Veteran suggesting that A.L.C. may be a helpless child permanently incapable of self-support. In August 1994, the Veteran notified the RO (through submission of a VA Form 21-674) that A.L.C. had graduated high school, thereby terminating her school attendance in May 1994. The Veteran noted that A.L.C.'s graduation from high school had been delayed "[d]ue to disability," and referred to attached documents concerning A.L.C.'s disability including school documentation of her having been designated "Educable Mentally Impaired." A VA Form 20-8993, sent to the Veteran in October 1994 with an RO copy retained in the claims-file, shows that the RO notified the Veteran: "We reduced your award effective June 1, 1994 due to the loss of a dependent child." The RO's correspondence notes that "payments for [A.L.C.] based on school attendance [were continued] until June 1, 1994." This correspondence includes notice to the Veteran of his "Procedural and Appellate Rights If You Do Not Agree With This Action." The Veteran did not appeal. Significantly, the RO's October 1994 correspondence expressly acknowledged the Veteran's contention that A.L.C. was a helpless child: "We need the information listed below so we can decide if the following children listed on your application are helpless: [A.L.C.]." The RO's correspondence advised the Veteran of the need to submit certain specified types of evidence concerning A.L.C.'s condition. The October 1994 correspondence explained: Please send us this evidence as soon as possible, preferably within 60 days.... We must receive it within one year from the date of this letter. If we do not receive it within one year, we will not be able to pay any additional benefits for any period before the date we receive it. The Veteran did not submit additional evidence nor in any other manner respond to the October 1994 RO determination and correspondence. The Board's review of the claims-file reveals no correspondence or submission prior to October 2005 pertaining to establishing the helpless child status of A.L.C. The RO's October 1994 determination that A.L.C. ceased to be an eligible dependent child of the Veteran's as of June 1994 may arguably be viewed in either of two interpretive constructions. Neither interpretation provides a basis for finding that the 1994 "helpless child" claim remained pending at the time of the Veteran's death. On one hand, the October 1994 determination that A.L.C. was no longer the Veteran's "child" for VA benefit purposes may be arguably interpreted to encompass a finding that A.L.C. was not shown to meet the criteria to be considered a "child" on any available basis, including being "permanently incapable of self-support before the age of 18." In this interpretation, the October 1994 determination was an unappealed decision addressing the "helpless child" issue and such an issue did not remain pending going forward. The October 1994 RO determination addressed the issue of A.L.C. qualifying as a dependent child including with acknowledgment of the Veteran's contention that A.L.C. was a helpless child. The October 1994 correspondence provided the Veteran with notice of his procedural and appellate rights and the Veteran did not appeal. To the extent that the October 1994 RO determination contemplated the question of whether A.L.C. was a helpless child, that decision became final when the Veteran failed to appeal the decision within a year of it being issued. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 20.1103. Any claim on that issue from prior to October 1994 would therefore not have been pending at the time of the Veteran's death in September 2005. On the other hand, the October 1994 RO determination may arguably be interpreted as deferring a decision on whether A.L.C. could be recognized as a helpless child; this interpretation would focus on the RO's request for additional pertinent evidence to allow for a determination as to whether A.L.C. was a helpless child. In this light, however, the RO's October 1994 correspondence significantly still provided clear instructions and notice to the Veteran of the steps necessary to develop and advance a claim to establish helpless child status for A.L.C. The Veteran's failure to complete the requested actions or to otherwise respond to the instructions constituted abandonment of that claim, and the claim cannot be considered to have been pending for the following decade until the Veteran's death. Where evidence requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). Again, the Board notes that the October 1994 correspondence specifically notified the Veteran that if he failed to respond to the instructions within a year there could be no payment of corresponding benefits for any period prior to the date of a subsequent claim. Neither the appellant's contentions nor the documentation in the claims-file identifies any subsequent claim or appeal to establish A.L.C. as the Veteran's helpless child filed after the October 1994 RO determination. In light of the information discussed above, the Board is unable to find that any claim to establish A.L.C.'s helpless child status was pending at the time of the Veteran's death. In sum, there is currently no legal basis in this case for awarding additional benefits associated with A.L.C.'s status as the Veteran's helpless child in connection with the Veteran's 1994 claim or any other claim during his lifetime. The Board finds that the Veteran did not have, at the time of his death, any claim pending to establish A.L.C.'s helpless child status. Any claim on this issue filed by the Veteran prior to October 1994 must be either viewed as having been adjudicated by the October 1994 RO determination that A.L.C. was no longer the Veteran's dependent child for VA purposes or, alternatively, such a claim must be viewed as having been abandoned when the Veteran did not respond to the RO's October 1994 instructions concerning submission or necessary evidence. The Veteran was notified in October 1994 that the matter would no longer remain pending if he did not respond within a year. Under either view of the processing of the helpless child issue in 1994, the issue was no longer pending at the time of the Veteran's death in September 2005. The claims-file otherwise contains no other suggestion of any claim concerning the dependent status or helpless child status of A.L.C. raised by the Veteran that remained pending at the time of his death. The claims prior to October 1994 were addressed by the October 1994 RO determination, and the appellant does not otherwise identify any pending claims concerning dependent child / helpless child status for A.L.C. alleged to have remained pending at the time of the Veteran's death. As such, the appellant's claim for establishment of an earlier effective date for recognition of A.L.C. as a helpless child on the basis of accrued benefits must be denied. ORDER Entitlement to an effective date of September 1, 2005 (but no earlier) for the grant of service connection for the grant of DIC benefits based on A.L.C.'s status as the Veteran's helpless child is warranted. To this extent, the appeal is granted, subject to applicable laws and regulations applicable to payment of VA monetary benefits. For accrued benefits purposes, entitlement to additional benefits based on A.L.C.'s status as the Veteran's helpless child is not warranted. To this extent, the appeal is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs