Citation Nr: 1328501 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-16 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than June 10, 2010, for the reinstatement of death pension payments. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from September 1940 to October 1945. The Veteran died in November 2005, and the appellant is his surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 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. A December 2006 RO decision granted the appellant's initial claim for widow's death pension benefits, effective from November 3, 2005. 2. On August 26, 2009 the RO terminated the appellant's death pension benefits, effective January 1, 2008, on the basis of her failure to submit requested financial information. 3. On March 30, 2010, and June 10, 2010, the RO received the appellant's claim for reinstatement of the death pension. 4. In a June 2011 RO decision, death pension payments were begun again, effective June 10, 2010. CONCLUSION OF LAW The criteria for an effective date of November 9, 2009, but not earlier, for the reinstatement of the appellant's death pension have been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION While the May 2012 statement of the case provided the appellant with Veterans Claims Assistance Act of 2000 (VCAA) notice regarding her appeal of the effective date assigned for the reinstatement of death pension benefits, any lack of VCAA notice or the timing thereof is not determinative because the outcome of this earlier effective date claim depends on documents that are already contained in the VA claims file. The Court has held that failure to comply with the notice requirement of the VCAA is not prejudicial to an appellant 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 (per curium). At any rate, the Board notes that this decision essentially grants the appellant's claim. The assignment of an effective date for pension is essentially governed by the date of filing with VA of a claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly-authorized representative, 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 as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The record reflects that the Veteran died in November 2005. In December 2006 the granted the appellant's claim for death pension benefits. Subsequent to the February 2009 receipt of the appellant's Eligibility Verification Report, the RO in May 2009 correspondence requested that the appellant provide additional clarifying financial information. After the non- receipt (according to the RO) of the requested information, on August 26, 2009, the RO terminated the appellant's death pension benefits, effective January 1, 2008, on the basis of failure to submit the requested financial information. Based on the foregoing, an overpayment was created on the appellant's death pension award in the amount of $20,482.00. Following receipt of the appellant's waiver request, a waiver was granted for the overpayment and the appellant was notified of the decision in January 2010. On March 30, 2010, and June 10, 2010, the RO received the appellant's claim for reinstatement of the death pension. In a June 2011 RO decision, death pension payments were begun again, effective June 10, 2010. The Board observes that language contained in the December 2009 waiver decision clearly indicates that the appellant's fault in the creation of the overpayment was just "minimal" and that the appellant responded in a timely manner to matters concerning the waiver request. Additionally, language contained in the appellant's June 2012 substantive appeal also reflects that the appellant was timely in response to notices as requested by VA. At the bare minimum, it appears that any requested financial information from the appellant was received by VA by at least November 9, 2009, as reflected in the appellant's VA Form 5655 (Financial Status Report) associated with the appellant's waiver request. The Board finds that under the circumstances of this case, the appellant's VA Form 5655 reasonably constitutes an informal claim for the reinstatement of the appellant's death pension benefits. While the appellant requests reinstatement of her death pension benefits effective January 1, 2008, it appears that such benefits were paid through August 26, 2009, and any reinstatement prior to August 27, 2009, would not be warranted as a matter of law. Based on the foregoing, the Board finds that the criteria for an effective date of November 9, 2009, for the reinstatement of the appellant's death pension benefits, is warranted. ORDER An effective date of November 9, 2009, but not earlier, for the reinstatement of the appellant's death pension benefits is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs