Citation Nr: 1329099 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 12-30 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to October 31, 2011 for the grant of service connection for cause of death. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to February 1958, and from June 1964 to August 1976. He died in November 1982. The appellant is purportedly the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The claims file was subsequently transferred to the RO in Muskogee, Oklahoma. In March 2013, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 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 Veteran died on November [redacted], 1982 as a result of service-connected pancreatitis. 2. The Veteran's father filed a claim for burial benefits on November 30, 1982. 3. A January 18, 1983 rating decision granted burial benefits to the Veteran's father based on a service-connected death. 4. In a correspondence dated in January 1996, the appellant requested the Veteran's service records. 5. VA Form 21-534, Application for Dependency and Indemnity Compensation (DIC), was received at the RO on October 31, 2011. 6. A June 2012 rating decision granted service connection for the cause of the Veteran's death, effective from October 31, 2011, the date on which the RO received the appellant's formal claim for DIC. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to October 31, 2011 for the grant of service connection for cause of death have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326 (West 2002 & Supp. 2013). This earlier effective date claim arises from the appellant's disagreement with the initial effective date assigned following the grant of service connection for the cause of the Veteran's death. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). All service treatment records, post service clinical records and other pertinent records have been obtained and associated with the claims file. Additionally, there has been no showing or allegation of prejudice to the appellant in the essential fairness of the adjudication. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Effective Date The appellant seeks an effective date prior to October 31, 2011 for the grant of service connection for the cause of the Veteran's death. She contends that an earlier effective date is warranted because she contacted the Muskogee, Oklahoma VA by phone in the 1980's to inquire about benefits. Except as otherwise provided, the effective date of an evaluation and award of DIC compensation based on an original claim, a claim reopened after 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); 38 C.F.R. § 3.400. The effective date of an award of DIC compensation for a surviving spouse of a veteran who died from a service-connected disability is the first day of the month in which the veteran's death occurred, if the claim is received within one year after the date of death; otherwise, the effective date of the award is the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(c)(2). A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for death benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.152. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). VA is required to look to all communications from the appellant which may be interpreted as applications or claims - formal and informal - for benefits. In particular, 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 Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In August 1976, the RO received the Veteran's original claim for VA benefits. He indicated that he and the appellant had divorced in July 1975, and that he had married V.M.B. in January 1976. In March 1978, the Veteran filed a VA Form 21-686c. He again indicated that he and the appellant had divorced in July 1975. He also indicated that he had married V.M.B. in January 1976, but that they were divorced in January 1978. In a December 1976 rating decision, the RO granted service connection for pancreatitis. On a January 1979 VA Form 21-527, Income-Net Worth and Employment Statement (In Support of Claim for Total Disability Benefits), the Veteran identified himself as divorced. On a November 1979 VA Form 21-527, the Veteran again identified himself as divorced, and indicated that he had had a previous marriage. He wrote: "Documentation previously submitted." On a November 1981 VA Form 21-527, the Veteran described his marital status as "divorced." With respect to previous marriages, he initially checked the "yes" box, but then scratched that out. On a November 1982 VA Form 21-527, the Veteran again described his marital status as "divorced." The Veteran died in November 1982 from cardiac arrest due to pancreatic pseuodcyst. On November 20, 1982, VA received a VA Form 21-530, Application for Burial Benefits, from the Veteran's father. In a January 18, 1983 rating decision, the RO determined that the Veteran's death was service-connected for burial benefits purposes. In a February 1983 letter, VA advised the Veteran's father that he had been awarded a burial allowance based on the service-connected death of the Veteran. In January 1996, the appellant requested a "certified copy of [the Veteran's] service discharge papers and any proof of all active duty." No further communication was received from the appellant until October 31, 2011, when the RO received her completed VA Form 21-534. In a June 2012 rating decision, the RO granted service connection for the cause of the Veteran's death, effective from October 31, 2011. Although the record is unclear regarding the appellant's status as the Veteran's surviving spouse, the RO did not address this issue specifically and apparently concluded that the appellant was eligible for VA benefits as the Veteran's surviving spouse. Thus, in order to avoid any possibility of prejudice to the appellant, the Board will not revisit this issue at this time. In July 2012, the appellant disagreed with the effective date of the grant of service connection for cause of death, asserting that "I asked the VA three different times about my eligibility to get widow's benefit." She concluded that the effective date of her award should be the date of the Veteran's death in 1982. The appellant testified during the March 2013 hearing that she called VA "about three times" in the mid-1980's and asked if she could file a claim for benefits. See Hearing Transcript at 7. She stated that she was told she "had nothing coming" and that there "was just absolutely nothing [VA] could do." Id. at 4. Upon review of the overall evidence of record, the Board concludes that an effective date for the payment of the appellant's DIC award can be no earlier than October 31, 2011. As indicated above, there is no evidence of record of the intent on the appellant's behalf to seek DIC benefits prior to October 31, 2011. Indeed, the appellant does not contend that she filed for DIC benefits prior to that date. Although the appellant reports that she contacted VA in the 1980's, there is no evidence that the appellant contacted VA at that time. In fact, the record is devoid of any communication from the appellant prior to October 31, 2011 that could be construed as a formal or informal claim for benefits. The Board recognizes the appellant's allegation that VA personnel gave her erroneous information when she inquired about a claim for benefits in the 1980's, and that she had been told that she was not eligible for benefits. Nevertheless, absent any contemporaneous documentation in the record that the appellant filed a claim in the 1980's, her assertions may not be accepted as proof that she did, in fact, file a claim. With regard to her assertion that she was provided misinformation, the Board points out that it has been consistently held that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995); see also McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (observing that "erroneous advice given by a government employee cannot be used to estop the government from denying benefits"). Persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance. See Morris v Derwinski, 1 Vet. App. 260, 265 (1991) (citing Fed. Crop Ins. Corp. v. Merrill, 33 U.S. 380, 384-385 (1947)). With regard to any assertion that the 1982 application for burial benefits and expenses should be construed as a claim for DIC benefits, this document cannot be considered a formal application for DIC because it was not submitted in the form prescribed by the Secretary. See 38 U.S.C.A. § 5101; Mitscher v. West, 13 Vet. App. 123 (1999). In any event, the Board notes that the 1982 application was filed by the Veteran's father. There is no indication that the appellant filed a claim for death benefits or was even aware of the 1983 determination. She was not a claimant and was not affected by the determination. See 38 U.S.C.A. § 5104(a). Since the appellant's application for DIC benefits was not received until many years after the Veteran's death, the effective date is the date of receipt of the claim - October 31, 2011. See 38 C.F.R. § 3.400(c)(2). The applicable law and regulations on the assignment of effective dates are binding in determining the outcome of this matter. See 38 U.S.C.A. § 7104(c). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date prior to October 31, 2011 for the grant of service connection for cause of death is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs