Citation Nr: 1323989 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-23 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than October 26, 2007, for the establishment of aid and attendance allowance for the Veteran's surviving spouse, for accrued benefits purposes. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1944 to March 1947. He died in January 1984, and the Appellant is his child. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which determined aid and attendance allowance, for accrued purposes only, was warranted for the Veteran's surviving spouse (the Appellant's mother) for the period from October 26, 2007, to her death in April 2008. The Appellant appealed, contending that an earlier effective date was warranted. The Appellant provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2010. FINDINGS OF FACT 1. The Appellant was born in October 1948 and was not permanently incapable of self support prior to reaching the age of 18 years. 2. The claim for aid and attendance benefits for the Veteran's surviving spouse was received by VA on October 26, 2007. A thorough review of the record does not reflect an unadjudicated formal or informal claim for such benefits was received prior to that date. 3. The Veteran's surviving spouse was not in receipt of an award of dependency and indemnity compensation (DIC) or pension that is effective prior to October 26, 2007. 4. The evidence does not demonstrate that the Veteran's surviving spouse departed from hospital, institutional or domiciliary care at VA's expense prior to October 26, 2007. CONCLUSION OF LAW The criteria for an effective date earlier than October 26, 2007, for the establishment of aid and attendance for the Veteran's surviving spouse, for accrued benefits purposes, are not met. 38 U.S.C.A. §§ 101(4)(A), 5107, 5110, 5121 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.57(a), 3.400, 3.402, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). However, in this case the appeal is from the Appellant's disagreement with the effective date assigned for aid and attendance allowance, for accrued benefits purposes, by the August 2008 rating decision. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As such, no discussion of VA's duty to notify is necessary. The Board also notes that the Appellant has actively participated in the processing of his case, and the statements submitted in support of her claim have indicated familiarity with the requirements for the benefits sought on appeal. For example, in her statements and hearing testimony she indicated that she is aware that the effective date is from the date of claim, but she maintains that her claim was filed prior to October 26, 2007. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the Appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the Appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). . In any event, the Appellant has not demonstrated any prejudice with regard to the content or timing of any notice, or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied regarding this appeal. Various records were obtained and considered in conjunction with the underlying aid and attendance claim. Further, both the Veteran's spouse during her lifetime, and the Appellant as part of the current claim, had the opportunity to present evidence and argument in support of this claim. Nothing indicates that either of them identified the existence of any relevant evidence that has not been obtained or requested regarding the underlying aid and attendance claim. Moreover, the issue on appeal is not whether the Appellant was entitled to such benefits, but the effective date of thereof. The Board notes, as a general rule, adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain documents were either received by VA or promulgated to the claimant. The Board further notes that the law mandates adjudicating accrued benefits claims based upon the evidence that was of record at the time of the recipient's death. With respect to the October 2010 Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ accurately noted the appellate claim, asked questions to clarify the Appellant's contentions, and suggested evidence that may support her contention that a claim was filed prior to October 2007. Moreover, the Appellant, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. Finally, the Appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has she identified any prejudice in the conduct of this hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In making all determinations, the Board must fully consider the lay assertions of record. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the claimant, and the claimant's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Upon the death of an individual receiving VA benefit payments, certain persons shall be paid periodic monetary benefits to which the deceased beneficiary was entitled at the time of death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid. See 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000(a). Accrued benefits to which a payee was entitled at his or her death under existing ratings or decisions, or those based on evidence in file at the date of death, will upon the death of such person, be paid as follows: (1) Upon the death of a veteran to the living person first listed as follows: (i) his or her spouse; (ii) his or her children (in equal shares); (iii) his or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to death pension, compensation, or dependency and indemnity compensation. (4) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial of the veteran. See 38 C.F.R. § 3.1000(a). Here, the Board observes that the Appellant was born in October 1948 and was not found to be permanently incapable of self support prior to reaching 18 years of age, and indeed, she has not reported otherwise. As such, she is not a child for VA purposes. 38 U.S.C.A. § 101(4)(A); 38 C.F.R. § 3.57(a); see also Burris v. Principi, 15 Vet. App. 348 (2001). Thus, she does not appear to be a proper claimant seeking accrued benefits under 5121(a). Id. Nonetheless, because the RO did not adjudicate this appeal on that basis, the Board will proceed to consider the merits of the Appellant's claim. For a claimant to be entitled to accrued benefits, the veteran or their survivor must have had a claim pending at the time of death for those benefits or else be entitled to them under an existing rating or decision. 38 U.S.C.A. §§ 5101(a), 5121(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). In this case, the Veteran's surviving spouse had a claim pending for aid and attendance allowance at the time of her death in April 2008. As noted in the Introduction, following her death, an August 2008 rating decision determined aid and attendance allowance, for accrued purposes only, was warranted for the period from October 26, 2007, to her death in April 2008. The Appellant is seeking an earlier effective date for this allowance. Generally, the effective date of an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In particular, 38 C.F.R. § 3.402 provides a rule specifically governing the effective date of an award of aid and attendance or housebound benefits to a surviving spouse. This regulation directs that an award of a death pension based on the need for aid and attendance will be effective the date the claim for that benefit was received, unless one of two exceptions apply. First, when an award of DIC or pension based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional DIC or pension payable to the surviving spouse by reason of need for aid and assistance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.402(c)(1). Second, for the purpose of granting aid and attendance benefits, the date of departure from hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). The date of receipt shall be the date on which a claim, information or evidence was received at VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r). VA means all organization units of the Department of Veterans Affairs. 38 C.F.R. § 1.9(b)(1). The Board notes that the record does reflect the Veteran's surviving spouse filed a VA Form 21-534 (Application for DIC or Death Pension by Surviving Spouse or Child (Including Accrued Benefits and Death Compensation Where Applicable)) in February 1984. She also indicated that she believed service connection was warranted for the Veteran's death. However, service connection for the cause of the Veteran's death was denied by an April 1984 rating decision. Further, the notification for this decision dated that same month also informed the Veteran's surviving spouse that she exceeded the income level for death pension benefits. This notification also informed her of her right to appeal, and she did not appeal. Following the April 1984 notification letter, nothing in the record indicates the Veteran's surviving spouse submitted any additional claims or evidence until a new VA Form 21-534 was received by VA in 2007. Although this document is dated as having been signed by the Veteran's surviving spouse in June 2007, this document is dated stamped as having been received by the RO on October 26, 2007. Further, this document is also date stamped as having been received by the Veterans of Foreign Wars (VFW) on October 26, 2007. The record indicates that VFW was the accredited representative for both the Veteran and his surviving spouse during their lifetimes. The Appellant, in her statements and hearing testimony, maintains that the claim was actually filed in June 2007, prior to the current October 2007 effective date. In pertinent part, she has contended and submitted evidence to the effect that the VA Form 21-534 was given to J. Stolz in June 2007, that he acknowledged receipt of the claim at that time, and that he indicated the Appellant would be entitled to an effective date for VA benefits from June 2007. The Board notes, however, that the evidence of record, to include a business card of J. Stolz, reflects that he was a service officer for a county service commission. In other words, he was not an employee of VA. Therefore, submission of a claim to him does not constitute the claim as having been received by VA. As already noted, the record reflects the claim was not actually received by VA until October 26, 2007, the current effective date. The Board also finds it significant that VFW date stamped the document to indicate they first received the VA Form 21-534 on October 26, 2007. The Board does not doubt the sincerity of the Appellant's contention that efforts were made to submit the claim in June 2007, and that she believed it had been submitted at that time. Further, the fact that the VA Form 21-534 was dated as having been signed by the Veteran's surviving spouse in June 2007 supports this contention. The Appellant has also indicated that even if J. Stolz was not a VA employee, it would be logical that he filed the claim immediately after receiving it in June 2007. Nevertheless, despite the efforts to file the claim in June 2007, the record reflects that the claim was not actually received by VA until October 26, 2007. The Board acknowledges that the Appellant discussed at her hearing that the original claim was filed with the Cleveland RO as that is where her mother (the Veteran's surviving spouse) lived, as opposed to the Detroit RO which currently has jurisdiction over the Veteran's VA claims folder. Further, the record confirms it was the Cleveland RO that date stamped the VA Form 21-534 as having been received in October 2007. However, as already stated, there is no indication a claim was received prior to that date. In regard to the date stamp showing the VA Form 21-534 was received by VA on October 26, 2007, the Court has long recognized that "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity may be overcome only by the submission of "clear evidence to the contrary." Id. at 309. A claimant's mere statement that he or she submitted a document to VA is insufficient for that purpose. See Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010) (Applying the presumption of regularity to conclude that VA did not receive the Appellant's Substantive Appeal because the Appellant's statements were insufficient to rebut the presumption that had VA received the Substantive Appeal, VA would have placed it in the claims file and acted on it in some way); see also Redding v. West, 13 Vet. App. 512, 515 (2000) (Finding Appellant's assertions of submission insufficient to rebut presumption that RO did not receive her power of attorney). For these reasons, the Board must find that there was no unadjudicated claim by or on behalf of the Veteran's surviving spouse that was received by VA prior to October 26, 2007. With respect to the exceptions provided by 38 C.F.R. § 3.402, the Board finds the Veteran's surviving spouse was not in receipt of an award of DIC or pension that is effective prior to October 26, 2007. As noted above, such claims were denied by an unappealed April 1984 decision, and nothing in the record reflects the Veteran's surviving spouse thereafter submitted any other claim or evidence until October 26, 2007. The Veteran was not service connected for any disability at the time of his death so as to warrant consideration of DIC pursuant to 38 U.S.C.A. § 1318. The Board further finds that the evidence does not demonstrate that the Veteran's surviving spouse departed from hospital, institutional or domiciliary care at VA's expense prior to October 26, 2007. The medical records used in support of the claim for aid and attendance allowance are from private medical care providers, and not VA. Additionally, the certificate of death for the Veteran's surviving spouse reflects she died at a private medical facility, and not VA. Therefore, neither of these exceptions appear applicable to the instant case. In view of the foregoing, the Board must find that there is no legal basis to award aid and attendance allowance to the Veteran's surviving spouse prior to October 26, 2007. Therefore, the benefit sought on appeal regarding this claim must be denied. The Board also observes that the Appellant has questioned the amount of total compensation that was paid for accrued benefits, to include the fact that no partial payment appears to have been made for October 2007. However, a review of the record indicates that the amount of compensation benefits that was paid was consistent with the general rules regarding the payment of death pension benefits, to include at the aid and attendance rate which is what the Veteran's surviving spouse was awarded. With few exceptions, payments of VA compensation benefits, including pension, begin the first day of the month following the effective date of the award. See 38 C.F.R. § 3.31. None of the delineated exceptions appear applicable in this case. See 38 C.F.R. § 3.31(c). The maximum amount of pension benefits, to include at the aid and attendance rate, is reduced by the amount of countable annual income. 38 U.S.C.A. § 1541; 38 C.F.R. § 3.23(b). Payments of any kind from any source shall be counted as income during the 12-month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. See 38 C.F.R. § 3.271(a). The Appellant has not demonstrated that the RO erred in making such calculations in determining the amount of accrued benefits. ORDER An effective date earlier than October 26, 2007, for the establishment of aid and attendance allowance for the Veteran's surviving spouse, for accrued benefits purposes, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs