Citation Nr: 1330216	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  13-17 458	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to an earlier effective date for death pension benefits.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 



INTRODUCTION

The Veteran served on active duty from March 1944 to January 1946.  The Veteran died in October 1996, and the appellant is his surviving spouse.  

This appeal to the Board of Veterans' Appeals (Board) is from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The appellant filed her claim for death pension benefits on January 29, 2010, well after one year of the death of the Veteran on October [redacted], 1996.  


CONCLUSION OF LAW

Entitlement to an effective date prior to January 29, 2010, for the grant of death pension benefits is not warranted.  38 U.S.C.A. §§ 5103, 5103A, 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.20, 3.31, 3.400 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).  

Death pension benefits are generally available for surviving spouses of war time Veteran's whose death was not service connected.  .  38 U.S.C.A. § 1541(a).  

Claims for VA non-service-connected death pension benefits received after December 10, 2004, are awarded effective from 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, it is the date of receipt of the claim.  38 C.F.R. § 3.400(c)(3)(i) (2013).  

On January 29, 2010, the appellant filed an application for benefits, VA Form 21-534.  She further indicated on the application that neither she nor the Veteran ever previously filed a claim with VA.  The appellant was awarded death pension as well as aid and attendance benefits in an August 2010 rating decision, effective from January 29, 2010, the date of receipt of the claim.  

Here, the appellant argues her effective date should be in September 2009, when she states she initially filed a claim for death pension with a Veterans Service Organization (VSO) representative.  The August 2013 Informal Hearing Presentation states it is unknown what happened to the September 2009 claim, but offers that it may have been filed electronically.  In further support of her claim, the appellant submitted a computer print out, purportedly from a state VSO representative's computer with whom she filed the claim, listing an Application for Dependency and Indemnity Compensation, followed by a September 21, 2009 date.  Also listed on this document is an examination for housebound status or permanent need for regular aid and attendance, followed by a September 21, 2009 date; an Application for Dependency and Indemnity Compensation, followed by a May 12, 2010 date; and, two Statements in Support of Claim, followed by a May 12, 2010 date.  

The Board has reviewed the appellant's Virtual VA claims file in addition to the paper claims file.  However, there is no indication the appellant filed any records concerning this claim prior to January 29, 2010.  Although the report of the Examination for Housebound Status or Permanent Need for Aid and Attendance is dated in October 2009, it bears a date stamp as having been received at a VA RO in February 2010.  There is no evidence to support the appellant's assertions that she filed a claim for death pension benefits before January 29, 2010, (in September 2009), and filing documents with a VSO is not the equivalent of filing a claim with VA.  Indeed, even the statement from the author of the above described list only reflects he forwarded the claim to another state VSO, and not to VA.  

Since the appellant filed her claim for death pension benefits on January 29, 2010, well after one year of the Veteran's death in October 1996, under the regulations cited above, she is not eligible for VA death pension benefits prior to January 29, 2010, the date of receipt of her claim.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  


ORDER

Entitlement to an effective date earlier than January 29, 2010, is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs