Citation Nr: 1325182 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 12-06 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to an earlier effective date prior to December 8, 2005 for the grant of service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty in the Philippine Commonwealth Army from December 1941 to July 1942 and from February 1945 to February 1946, and was a prisoner of war from April 1942 to July 1942. The Veteran died in June 1986. The Appellant is the Veteran's surviving spouse. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines which granted service connection for the cause of the Veteran's death effective December 8, 2005. The Appellant has appealed the assigned effective date for the grant of service connection in this case. 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 Board denied service connection for the cause of the Veteran's death in an unappealed March 1989 decision. 2. The RO denied the claim to reopen service connection for the cause of the Veteran's death in a June 2002 rating decision. 3. The Appellant did not perfect an appeal the June 2002 rating decision and it became final. 4. The June 2002 RO decision is the last final decision prior to the Appellant's request to reopen service connection for the cause of the Veteran's death in January 2004. 5. The January 2004 claim to reopen service connection for the cause of the Veteran's death is deemed to have been abandoned. 6. There are no documents or communications of record dated from January 2004 and prior to December 8, 2005 that constitute a claim to reopen service connection for the cause of the Veteran's death. CONCLUSION OF LAW The criteria for an effective date prior to December 8, 2005 for the grant of service connection for the cause of the Veteran's death have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.158(a), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court or CAVC) held that proper VCAA notice for dependency and indemnity compensation (DIC) claims must also include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected claim; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. VA has met its duty to notify and assist the Appellant in this case. In a February 2006 preadjudicatory letter, VA informed the Appellant of the evidence necessary to substantiate her claim for DIC benefits, evidence VA would reasonably seek to obtain, and information and evidence for which she was responsible, as well as notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman, 19 Vet. App. at 473. The February 2006 notice letter provided the Appellant with notice addressing the new and material evidence claim in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), and provided notice with regard to the underlying claim for DIC benefits in accordance with Hupp, 21 Vet. App. at 342. See also Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (holding that claims reopen previously and finally denied claims, implicated both the question of whether there is new and material evidence to reopen the claim and the question of whether, upon such reopening, the claimant is entitled to the requested benefits.). Thus, the Board finds that the Appellant was provided adequate notice with respect to her original claim for benefits. The current appeal is for an earlier effective date. Effective date claims are generally considered to be "downstream" issues from the original grant of service connection if appealed from that initial grant of service connection. VA's General Counsel has promulgated an advisory opinion holding that separate notice of the VA's duty to assist and notify the claimant of his or her concomitant responsibilities in the development of claims involving such downstream issues is not required when adequate VCAA notice was provided following receipt of the original claim. VAOPGCPREC 8-2003. Service treatment records, private treatment records and opinions, and lay statements and evidence are of record. The outcome of this earlier effective date claim depends exclusively on documents which are already contained in the VA claims folder. The Court has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by a 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). For these reasons, the Board finds that VA has met its duties to notify and assist the Appellant. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Laws and Regulations Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity 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 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). A "claim" is defined as 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), 3.151 (2012). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2012). Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2012). Where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). Additionally, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Where a claim is reconsidered and service connection granted, the effective date shall be the later of the date entitlement arose and the date VA received the previously decided claim. 38 C.F.R. § 3.156(c)(3). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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. (CONTINUED ON NEXT PAGE) Effective Date Analysis The Appellant asserts, in a March 2012 substantive appeal, that because the Veteran's cause of death was incurred in service, the effective date for the grant of service connection should be the month proceeding the date of the Veteran's death. The Veteran died in June 1986. The Appellant filed an initial claim for service connection for the cause of the Veteran's death in November 1986. In April 1987 and November 1987 rating decisions, the RO denied service connection for the cause of the Veteran's death. The Appellant perfected an appeal as to this initial denial, and in March 1989, the Board denied service connection for the cause of the Veteran's death, finding that the evidence of record did not show that the Veteran's cause of death was due to service-connected pulmonary tuberculosis. The Appellant did not appeal the March 1989 Board decision, and that decision became final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In June 2001, the Appellant attempted to reopen service connection for the cause of the Veteran's death by submitting a formal claim for DIC benefits (VA Form 21-534). The RO denied the claim to reopen service connection for death benefits in a June 2002 rating decision finding that new and material evidence had not been submitted. The Appellant submitted a timely notice of disagreement to the June 2002 RO decision, but did not perfect her appeal. Additionally, the Appellant did not submit new and material evidence within one year of the June 2002 denial of service connection for the cause of the Veteran's death. 38 C.F.R. § 3.156(b). Therefore, the June 2002 RO decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. The Board finds that the June 2002 RO decision is the last final decision prior to the Appellant's subsequent request to reopen her claim. Accordingly, because the claim for service connection for the cause of the Veteran's death was denied in June 2002, and the Appellant did not appeal that claim, the proper effective date is the later of the date of the claim to reopen and not the date that entitlement arose. See 38 C.F.R. § 3.400(q), (r). While the Appellant asserts that service connection is warranted from the date of the Veteran's death because his cause of death was incurred in service, the Board emphasizes that VA regulations provide that the proper effective date is the later of the date of the claim, and not the date that entitlement arose. Subsequent to the June 2002 final denial of service connection, the next document of record is a January 2004 informal claim to reopen service connection for "Dependency Indemnity Compensation/ Death Pension." The Board finds, however, that the Appellant abandoned the January 2004 claim to reopen service connection for the cause of the Veteran's death. Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a); See also McColley v. West, 13 Vet. App. 553, 555-57 (2000). In February 2004, the RO informed the Appellant that a claim for DIC benefits was previously denied and that new and material evidence was required in order to reopen the claim. No additional correspondence or evidence was submitted within one year of the February 2004 notice letter. Consequently, because the Appellant failed to respond to the RO's request for additional evidence within one year from the date of the February 2004 letter, the January 2004 claim for service connection for DIC benefits is deemed to have been abandoned. Pursuant to 38 C.F.R. § 3.158(a), when a claim is abandoned, the claimant must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim. Id. The next document of record is a formal claim to reopen service connection for the cause of the Veteran's death (VA Form 21-534) dated in December 8, 2005. This was submitted along with additional medical and lay evidence. Service connection for the cause of the Veteran's death was granted in July 2010, effective the date of the December 8, 2005 claim. There are no documents or communications of record dated from January 2004 and prior to December 8, 2005 that constitute a claim to reopen service connection for the cause of the Veteran's death. The Board finds that an effective date prior to December 8, 2005, the date the Appellant filed a claim to reopen service connection for the cause of the Veteran's death, is not warranted. Upon a thorough review of the claims file, the Board finds that there is no earlier communication or action evidencing intent to apply for, or a belief in entitlement to, service connection for the cause of the Veteran's death since the Appellant abandoned her January 2004 claim for benefits. See 38 C.F.R. §§ 3.1(p), 3.155(a), 3.158(a). As noted above, there were no documents associated with the claims file, received after the June 2002 final denial of service connection for the cause of the Veteran's death and prior to the December 8, 2005 claim to reopen, other than the January 2004 informal claim which, in this case, is deemed to have been abandoned. Thus, the Board finds that the Appellant did not indicate any intent to file a claim for or reopen service connection for the cause of the Veteran's death prior to December 8, 2005 and subsequent abandoning her January 2004 claim. For these reasons, the Board finds that an effective prior to December 8, 2005 is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, however, as the preponderance of the evidence is against the Appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an effective date prior to December 8, 2005 for service connection for the cause of the Veteran's death is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs