Citation Nr: 1322774 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 13-02 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an earlier effective date for dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran had active service from March 1966 to December 1969. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted DIC benefits to the appellant based on the establishment of service connection for the cause of the Veteran's death. The appellant appealed the effective date for such benefits, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDINGS OF FACT 1. The Veteran died on March [redacted], 2002. 2. The appellant's claim for dependency and indemnity compensation was received on September 23, 2010. CONCLUSION OF LAW The criteria for an earlier effective date, prior to October 1, 2010, for the grant of dependency and indemnity compensation benefits have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5110(d), 7104 (West 2002); 38 C.F.R. §§ 3.5, 3.152, 3.400(c)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). In claims for DIC benefits, appropriate notice from the RO to the appellant must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Such a notice was supplied to the appellant in a letter of October 2010. In this case, the appellant's claim arises from an appeal of the effective date assigned for entitlement to DIC benefits, following the grant of service connection for the cause of the Veteran's death. Once service connection is granted, the claim is substantiated, so additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The adjudication of a claim for an earlier effective date for DIC is based upon evidence already in the claims folder; the resolution of the appeal for earlier effective date depends upon when certain document(s) were received by VA, and medical evidence which has been previously developed. See generally 38 C.F.R. §§ 3.151 , 3.155, 3.156, 3.157, 3.160, 3.400 (2012). The date that the appellant's claim was received cannot be altered by medical examination or opinion. Consequently, there is no additional development (that has not already been conducted) that would substantiate the appellant's appeal for an earlier effective date for DIC. In this case, the law and not the evidence are dispositive of the claim, so the VCAA is not applicable. In this case, the earliest possible date permitted by the effective date regulations (date of receipt of claim) has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000), aff'd, 28 F.3d 1384 (Fed. Cir. 2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board finds that the record as it stands includes sufficient competent evidence to decide the appeal for earlier effective date. See 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that adequate VCAA notice was provided in October 2010 with regard to establishing service connection for the cause of the Veteran's death, and no further VCAA notice is necessary for the issue before the Board. Earlier Effective Date for DIC Benefits DIC may be awarded to a surviving spouse upon the service-connected death of a veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C.A. § 1310 (West 2002 & Supp. 2012); 38 C.F.R. § 3.5(a), 3,152 (2012); see generally 38 U.S.C.A. Chapter 11. Generally, a veteran's death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(k), 3.303 (2012). For claims involving service-connected death after separation from service, if an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred; otherwise, the effective date for DIC is the date of receipt of the claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). The earliest date for commencement of payment of an additional award of compensation for a dependent spouse is the first day of the month following the effective date. 38 C.F.R. § 3.31 (2012). The undisputed facts in this case show the Veteran died on March [redacted], 2002 due to complications of lung cancer. At the time of his death, service connection had not been established for this or any other disability. On September 23, 2010, VA received the appellant's claim for DIC benefits. The RO granted service connection in the January 2011 rating decision on appeal. While the rating decision incorrectly indicated the assignment of an effective date of March [redacted], 2002 for DIC benefits, contemporaneous correspondence sent to the appellant in January 2011 stated that basic eligibility was established effective October 1, 2010. The appellant contends that, because the Veteran died on March [redacted], 2002, the effective date of DIC benefits should also be March [redacted], 2002. She contends that she did not file for DIC benefits sooner as she did not know such benefits existed. The Board finds that an entitlement to DIC benefits prior to October 1, 2010 is not warranted as a legal matter. The controlling facts in this case are not in dispute. The Veteran died on March [redacted], 2002 and the appellant's application for DIC was first received by VA on September 23, 2010. The appellant does not contend that her application was received by VA earlier than September 23, 2010, which is more than one year from the date of the Veteran's death. To the extent that she contends that she was unaware of her eligibility for DIC sooner than September 2010, this argument has no merit, as ignorance of the law does not absolve adherence to it. Bryan v. West, 13 Vet. App. 482, 486-87 (2000). The Supreme Court of the United States has held that everyone dealing with the government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384 (1947). Thus, regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance." Id., at 385. Accordingly, as the appellant's date of claim for DIC that was received in September 2010 was not received within one year of the Veteran's death on March [redacted], 2002, 38 C.F.R. § 3.400(c)(2) (allowing the effective date of the award to be the first day of the month in which the death occurred) is not applicable. The Board has also considered potential applicability of the "substitution rule" which allows for a living person to receive accrued benefits of a deceased is certain circumstances; however, the rule applies only in case of death of a claimant who dies on or after October 10, 2008, thus, is not applicable in the present case. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C. § 5121A , substitution in case of death of a claimant who dies on or after October 10, 2008). In this case, an effective prior to the date of receipt of the appellant's claim for DIC in September 2010 is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection for the cause of a veteran's death, in a case where the claim for DIC is not received within one year of the veteran's death, is the date of receipt of the DIC claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). The facts regarding the date of the Veteran's death and the date of receipt of appellant's DIC claim are not in dispute. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012). As there is no legal basis for assignment of any earlier effective date than October 1, 2010 for benefits based on service connection for the cause of the Veteran's death, the Board finds that an earlier effective date is not warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be denied as without legal merit. See Sabonis, 6 Vet. App. at 430. ORDER The appeal for an effective date earlier than October 1, 2010 for the establishment of DIC benefits, being without legal merit, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs