Citation Nr: 1329809	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  06-13 004	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an effective date earlier than August 5, 2004, for the grant of service connection for small cell lung cancer for purposes of accrued benefits.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The appellant



ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to May 1972.  He died in August 2004.  The appellant is the surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  

In June 2013, the appellant testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims folder. 


FINDINGS OF FACT

1.  The Veteran filed a claim of service connection for small cell lung cancer, which was received by VA on August 5, 2004.

2.  By an August [redacted], 2004 rating decision, the RO granted service connection for small cell lung cancer and assigned a 100 percent disability rating, effective August 5, 2004. 

3.  VA received the appellant's claim for accrued benefits on August 24, 2004.  

4.  There was no claim of service connection filed for small cell lung cancer, formal or informal, before August 5, 2004. 


CONCLUSION OF LAW

An effective date earlier than August 5, 2004, for the grant of service connection for small cell lung cancer for purposes of accrued benefits is not warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.155, 3.400, 4.132 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's 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) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Here, a post-adjudication letter dated in August 2006 complied with VA's duty to notify the appellant with regards to the effective date issue addressed herein.  Specifically, this correspondence advised the appellant of what the evidence must show to establish entitlement to the benefit, and what evidence and/or information was already in the RO's possession.  The letter also notified the appellant of the criteria for assigning an effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Although the required notice was not provided until after the appellant's claim was initially adjudicated, the claim was subsequently re-adjudicated in a January 2008 supplemental statement of the case, thereby correcting any defect in the timing of the notice.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  No further corrective action is necessary.

The Board observes that the appellant was not provided by VA with the necessary information with regard how to substantiate a claim for accrued benefits.  Although she did not receive a notice letter, however, the appellant has demonstrated actual knowledge of the criteria.  Specifically, as will be discussed below, through her arguments and testimony she has fully articulated why she believes the effective date for the grant of small cell lung cancer should be June 15, 2004.  From a review of her arguments and testimony, it is clear that the appellant, who is represented in this matter, is fully aware of the pertinent criteria to establish entitlement to the benefit sought.  Moreover, an accrued benefits claim must be decided on the record that existed at the time of the Veteran's death.  Therefore, the Board finds that the appellant has been provided with sufficient notice.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA has also satisfied its duty to assist the appellant at every stage of this case.  As noted above, a decision for accrued benefits must be based on the evidence of record at the time of the Veteran's death.  No additional information has been identified that should have been construed to be in VA's constructive possession at the time of the Veteran's death.  Thus, there is no additional evidence for VA to obtain.

II.  Analysis

Upon the death of a veteran, his lawful surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of death, and which were due and unpaid, based on existing rating decisions or other evidence that was on file when the veteran died. 

To prevail on an accrued benefits claim, the record must establish that: (1) the appellant has standing to file a claim for accrued benefits; (2) the veteran had a claim pending at the time of his death; (3) the veteran would have prevailed on the claim if he had not died; and (4) the claim for accrued benefits was filed within one year of the veteran's death.  38 U.S.C.A. §§ 5101, 5121; 38 C.F.R. § 3.1000. 

Generally, evidence contained in a veteran's file at the time of death will be considered when reviewing a claim for accrued benefits.  The Board is prohibited from considering evidence received after the date of a veteran's death, except for records deemed to be in the constructive possession of VA at the time of death, such as VA records.  38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4).  Stated differently, after the veteran's death, the appellant cannot submit or VA cannot develop the case for additional evidence, except for records in constructive possession of VA. 

The Veteran filed a claim of service connection for small cell lung cancer, which was received by VA on August 5, 2004.  

On August [redacted], 2004, the RO granted service connection for small cell lung cancer and assigned an effective date of August 5, 2004, the date of receipt of the claim by VA.

The Veteran died on August [redacted], 2004.

The appellant filed a claim for accrued benefits on August 24, 2004, which was within the one-year period following the Veteran's death.  See 38 C.F.R. 
§ 3.1000(c). 

In October 2004, the RO granted the appellant's claim for accrued benefits.  In November 2004, the appellant filed a disagreement with the assigned effective date for the grant of service connection for small cell lung cancer.  She contends that the grant should be effective from June 15, 2004, the date the Veteran was first diagnosed with small cell lung cancer.

Under VA laws and regulations, 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 laws administered by the VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

"Claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-5  (1998).  Any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits 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.  38 C.F.R. § 3.155(a)  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In considering the evidence of record under the laws and regulations as set forth above, the Board finds that August 5, 2004, is the correct date for the grant of service connection for small cell lung cancer.  There is no correspondence or any other document that could be considered a claim received by the RO before August 5, 2004, that evinces intent by the Veteran to file a claim of service connection for lung cancer.

Although lung cancer was diagnosed on June 15, 2004, the effective date cannot precede the date of receipt of the claim, in the absence of evidence of a pending or unadjudicated claim for the same disability before the date of receipt of the claim or claim of clear and unmistakable error in prior rating decision, denying the claim during the Veteran's lifetime.  As there was no pending claim of service connection for lung cancer before August 5, 2004, and no claim of clear and unmistakable error in a prior rating decision denying the same disability during the Veteran's lifetime, the proper effective date for the grant of the benefit is August 5, 2004. 

As the preponderance of the evidence is against the claim, there is no doubt to be resolved, and an effective date before August 5, 2004, for service connection for small cell lung cancer for accrued benefits purposes is not warranted.  See 38 C.F.R. § 5107(b). 



ORDER

An effective date earlier than August 5, 2004, for the grant of service connection for small cell lung cancer for purposes of accrued benefits is denied. 



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs