Citation Nr: 1627807 Decision Date: 07/13/16 Archive Date: 07/22/16 DOCKET NO. 12-30 915A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than June 17, 2011, for the grant of dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and K.K. ATTORNEY FOR THE BOARD B. Rideout-Davidson, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1966 to October 1969. He passed away in May 2001 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The appellant testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2016. A transcript of that hearing has been associated with the claims file. This appeal was processed using Virtual VA and the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran died in May 2001. 2. The appellant first filed a claim for service connection for the cause of death of the Veteran on June 17, 2011. 3. There is no earlier formal or informal claim for DIC benefits from the appellant or her representative between the date of the Veteran's death, in May 2001, and June 17, 2011. CONCLUSION OF LAW The criteria for an effective date earlier than June 17, 2011, for the grant of DIC benefits are not met. 38 U.S.C.A. §§ 101, 1310, 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.151, 3.155, 3.159, 3.160(c), 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board acknowledges and is appreciative of the Veteran's honorable service to our country and expresses our sympathy to the appellant for her loss. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that it appears that a duty to assist letter was not issued prior to the July 2011 rating decision, which granted DIC benefits to the appellant. However, in cases where service connection has been granted and an effective date has been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Indeed, to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess v. Nicholson, 19 Vet. App. 473, 491, 493, 500-01 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Under 38 U.S.C.A. § 7105, VA is to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements, including an effective date. Id. There has been no allegation of such error in this case by either the appellant or her representative. Further, because the RO issued the appropriate SOC addressing the downstream effective date claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an earlier effective date, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Therefore, no further VCAA notice is necessary for the downstream effective date issue. VA also has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's relevant medical records are associated with the claims file. There is no indication in the record that additional evidence relevant to the effective date issue decided herein is available and not part of the claims file. The effective date assigned herein is based on VA treatment records and procedural documents already in the file. 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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. Moreover, as noted above, the appellant was also afforded an opportunity to present testimony at a hearing before the Board in February 2016 with her current representative. During the hearing, the undersigned Veterans Law Judge set forth the issues to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claim. The appellant, through her testimony and questioning by her representative, demonstrated her actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. Law and Analysis The appellant has appealed the July 2011 rating decision for an earlier effective date of the grant of DIC benefits. Specifically, she has testified that the effective date should be the date of the Veteran's death in May 2001. She has testified that, if VA had made her aware that she could receive DIC benefits for the Veteran's death in 2001, she would have applied within one year of the Veteran's death in order to receive the earliest effective date possible. DIC is defined in the regulations as a monthly payment made by VA to a surviving spouse, child, or parent because of a service-connected death of a veteran occurring after December 31, 1956. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a)(1). Generally, a veteran's death is service-connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303. The death of a veteran will be considered as having been due to a service-connected disability where the evidence establishes that such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312(a). Generally, the effective date of an award of DIC compensation 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. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). However, for claims involving service-connected death after separation from service, an exception applies. If an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred. Otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(d); 38 C.F.R. § 3.400(c)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). At the time the appellant's claim was filed, a claim was 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) (2014). Thus, at that time, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Review of the evidence of record in this case shows that on June 17, 2011, the appellant filed a claim for DIC benefits. In a July 2011 rating decision, the RO granted service connection for the cause of the Veteran's death. The RO assigned an effective date of June 17, 2011, which was the date the appellant's DIC application was received by the RO. The appellant then filed a timely appeal stating that the date of claim should have been the day after her husband died, because, if she had known that she was entitled to DIC benefits, she would have filed her claim at that time. Upon review of the evidence, the Board finds that an earlier effective date prior to June 17, 2011, for the award of DIC benefits is not warranted. The earliest claim of record for DIC benefits is June 17, 2011. The evidence of record contains no communication from the appellant or her representative indicating an intent to file a claim for DIC benefits at any time prior to June 2011. The Board sympathizes with the appellant's position that she did not know she was entitled to benefits prior to June 2011. However, the law does not allow for a grant of an earlier effective date on this basis. The Board's actions are bound by the applicable law and regulations as written and it has no power to grant benefits not authorized by law. 38 U.S.C.A. § 7104(c). As such, the appellant's claim must be denied. ORDER An effective date earlier than June 17, 2011, for DIC benefits is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs