Citation Nr: 1322948	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  12-25 768	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an effective date prior to November 9, 2010 for the grant of nonservice connected pension benefits.


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The veteran served on active duty from September 1951 to September 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Department of Veterans Affairs (VA) Pension Management Center located in Milwaukee, Wisconsin that granted entitlement to non-service-connected disability pension benefits, effective from November 9, 2010.  The Veteran appealed for an earlier effective date. 

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).


FINDING OF FACT

On November 9, 2010, the RO received the Veteran's claim for entitlement to non-service-connected disability pension benefits, and the RO subsequently granted these benefits effective from November 9, 2010.


CONCLUSION OF LAW

The effective date for the grant of entitlement to non-service-connected disability pension benefits may be no earlier than November 9, 2010, the date of VA receipt of the claim for this benefit.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty 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 within a month after receipt of his November 9, 2010 claim.  He was not provided with pre-adjudication notice regarding this claim.  Regardless, in cases, as here, 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 August 2012, 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.

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.  He submitted personal statements and his Virtual VA electronic file has been reviewed.  He has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists.  As noted below, the Veteran was granted Social Security Administration (SSA) disability benefits prior to the receipt of the claim at hand.  VA has not obtained the medical records corresponding to this grant of SSA benefits.  However, the contents of these records are irrelevant to the claim at hand because they reflect treatment dating prior to the receipt of the claim, which is the earliest date that entitlement to this particular benefit can be granted.  ).  Resolution of this appeal ultimately turns on when he filed his claim, therefore as a legal matter, there is no possibility whatsoever that the contents of the SSA records could affect the current claim.  Accordingly, there is no duty to obtain such records.  38 C.F.R. § 3.159(b)(3).

Importantly, the Veteran has not claimed that prior to 2010 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) (2012).  Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence pertinent to his claim.  No useful purpose would be served in remanding this matter for yet more development.  A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra.  

Law and Analysis

The Veteran contends that an effective date earlier than November 9, 2010 is warranted for the grant of nonservice-connected pension benefits.  

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); 38 C.F.R. § 3.400.  An award of a disability pension may not be effective prior to the date entitlement arose.  38 C.F.R. § 3.400(b)(1).  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 is necessary for disability benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.  In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her 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 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 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.

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). 

The basic facts in this case are not in dispute.  The Veteran filed an original claim for nonservice-connected pension benefits on November 9, 2010.  Following his request, the Pension Management Center obtained data from the SSA concerning any benefits awards that may have been granted.  It was discovered that SSA had determined that the Veteran became disabled in November 1991.

In December 2010, the Pension Management Center awarded a nonservice-connected pension to the Veteran from November 9, 2010, the date of receipt of the Veteran's claim.

The Veteran does not argue, and the evidence of record does not reveal, that he filed a formal or informal claim for nonservice-connected pension benefits prior to November 9, 2010.  Rather he contends that he is entitled to an earlier effective date, as he was apparently eligible for a nonservice-connected pension many years prior to recent grant of benefits.  See Lay Statement received June 2011; Notice of Disagreement received in August 2011; and VA Form 9, received in September 2010.  

However, the record is devoid of any communication from the Veteran prior to his filing a claim with VA in November 2010, indicating an intent or desire to file a claim of entitlement to pension benefits.  Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") (emphasis added).  In fact, the first time that the record shows any writing from the Veteran following his July 1953 separation from active duty is on November 9, 2010. 

Even though the SSA granted the Veteran benefits prior to November 9, 2010, the VA was not made aware of that grant.  If, between November 1991 (the date of the SSA decision) and November 2010 the VA had been made aware of the SSA grant, the VA could then consider that notification as an informal claim for benefits.  However, it was not until after the Veteran filed his pension claim with VA in November 2010 that VA knew of the SSA award.  In fact, he waited for a number of years after the SSA decision before contacting the VA with a claim for non-service-connected pension benefits.

Therefore, since the Veteran's claim was received on November 9, 2010, the effective date of the award may be no earlier than the date of receipt of that claim.  The law is clear that no benefit may be paid before a claim is made.  38 U.S.C.A. § 5101.  Moreover, while the Veteran claims that he was eligible for many years prior to the grant of benefits, the Board finds that it must apply "the law as it exists, and cannot 'extend . . . benefits out of sympathy for a particular [claimant].'"  See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992).  

Accordingly, and based on this evidentiary posture, the preponderance of the evidence is against an effective date earlier than November 9, 2010.  

The Board notes that there is, however, a provision of law which permits veterans to seek a retroactive award if certain conditions are met.  Specifically, if, within one year from the date on which the veteran became permanently and totally disabled, a veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the pension award may be made effective from the date of receipt of the claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran.  38 C.F.R. § 3.400(b)(1)(ii)(B) (emphasis added); see also 38 C.F.R. § 3.151(b).  In this case, the Veteran does not claim that he had a physical or mental incapacitation during this period.  Rather, he simply argues that he was eligible for pension benefits for many years prior and since, he would have qualified if he had applied, then he should be awarded an earlier effective date.  It is not shown that the Veteran's disabilities were so incapacitating as to prevent him from filing a pension claim for at least 30 days following the date of permanent and total disablement.  38 C.F.R. § 3.400(b)(1)(ii)(B). 

Therefore, entitlement to an effective date prior to November 9, 2010, for the grant of nonservice-connected pension benefits is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply.  See 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 


ORDER

Entitlement to an effective date prior to November 9, 2010 for the grant of nonservice-connected pension benefits is denied.  



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs