Citation Nr: 1751440 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-00 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date earlier than March 15, 2010 for survivor's pension as a helpless child. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1949 to November 1955. The Veteran's death certificate shows that he died in September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2015, an attorney, M.J.K, sent a letter asking for confirmation as to whether his office was the appellant's representative on file. A VA Form 21-22a dated in January 2013 shows that this attorney was the appellant's representative. However, in May 2014, the appellant executed a new Power of Attorney, VA Form 21-22a, appointing The American Legion as her representative. Thus she is currently represented by The American Legion. In statement dated in November 2016 that was received in December 2016, the appellant stated she wanted to cancel her appeal and file for reconsideration of her claim, which she alleged she initially filed in 2002 to include a retroactive payment. However, this statement cannot be construed as motion of reconsideration as there was no Board decision of record denying the appellant benefits. The only Board decision of record, other than the one being issued herein, is the February 2015 Board decision that granted the appellant's claim of entitlement to recognition as a helpless child of the Veteran for purposes of VA death benefits. The statement also cannot be construed as a withdrawal of the appellant's claim as she articulated her intent to continue pursuing her appeal for retroactive payment. "[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In September 2017, the appellant withdrew her request for a Board hearing and requested that a decision be issued. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The appellant is the adult helpless child of the Veteran. 2. The appellant filed an initial claim on May 18, 2004 for death benefits as a helpless child. 3. In an unappealed decision in August 2004 the RO denied the appellant's claim for death benefits as a helpless child. 4. An informal claim to reopen the claim for death benefits as a helpless child was received on March 15, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than March 15, 2010 for survivor's pension as a helpless child have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). This appeal arises from disagreement with the effective date assigned for survivor's pension as a helpless child. 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). In the instant case all identified and available authorized records relevant to the matter have been requested or obtained. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Analysis The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. 5110(a). The effective date for an award of benefits based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 9138 C.F.R. § 3.400(q)(2). The effective date for an award of death pension based on claims received prior to October 1, 1984, or on or after December 10, 2004, shall be the first day of the month in which the veteran's death occurred if claim is received within one year after the date of death; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(c)(3)(i). The effective date for an award of death pension based on claims received between October 1, 1984 and December 9, 2004, shall be the first day of the month in which the veteran's death occurred if the claim is received within 45 days after the date of death; otherwise, date of receipt of the claim. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a). If a formal claim has not been filed, an application form will be forwarded to the claimant and if received within 1 year form the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(b). The Veteran's death certificate shows that he died in September 1977. On May 18, 2004 the appellant submitted an application, VA Form 21-534, for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child. On the form, the appellant checked the box indicating that she did not previously file a claim for VA benefits. She also checked the box indicating that she was seriously disabled. In a decision dated on August 24, 2004, the RO denied the appellant's claim for death benefits as a helpless child. She was advised that she had until June 1, 2005 to submit evidence to substantiate her claim. Otherwise evidence received after June 1, 2005 must be considered a new claim and thus any benefits she would be eligible for could not start before the date her new claim was received. The appellant was advised that she had one year from the date of the decision to appeal the decision. The RO provided the appellant with her appellate rights by including VA Form 4107, "Your Rights to Appeal Our Decision." In February 2015, the Board implicitly reopened and granted the appellant's claim of entitlement to recognition as a helpless child of the Veteran for purposes of VA death benefits. Although the Board in the decision incorrectly presented the date of the RO decision on appeal to be August 2004 instead of April 2011, such an error amounts to no more than a clerical error based on the procedural history of the claim during the appeal period that was before the Board. Namely, a notice of disagreement to the April 2011 decision was received in November 2011, a Statement of the Case was issued in June 2013, a Form 9 Appeal was received in June 2013 and the Form 8 Certification of Appeal for the issue of entitlement to death benefits as a helpless child is dated February 2014. In a rating decision on April 17, 2015, the RO implemented the Board's February 2015 decision and determined permanent incapacity for self-support for the appellant was established from the date of her reopened claim, received on March 15, 2010. The July 2016 rating decision was issued for administrative purposes to allow processing of the appellant's claim at the Pension Management Center in Philadelphia, PA. The appellant contends that she is entitled to an effective date going back to 2002 or 2004. In the July 2016 notice of disagreement and November 2016 Form 9 appeal, she asserted that her claim she be granted back to 2002, when she first filed her claim. In a September 2016 statement she stated that she first filed her claim in 2004 and that her benefits should go back to 2004. The appellant first filed her claim in May 2004, which was denied in August 2004. Additionally, the August 2004 decision provided her with her appellate rights and she did not submit a notice of disagreement nor any additional evidence pertaining to the matter within one year of the decision. Consequently, the Board concludes that the August 2004 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302 (A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits). The RO sent the appellant a follow-up letter on June 30, 2006 stating that her claim as a helpless child was denied on August 24, 2004 and that if she wished to reopen her claim she would need to submit evidence of her disabilities prior to the age of eighteen. On October 17, 2007 the appellant submitted a Form 9 Appeal stating that she went into foster care after her father died. On December 17, 2007 the RO determined that the appellant's Form 9 Appeal dated October 17, 2007 could not be accepted as a notice of disagreement with the decision on August 24, 2004 denying her claim for helpless child benefits because it was not timely as it was not submitted within one year of the August 24, 2004 decision and thus the appellate period expired and the August 2004 decision became final. The RO informed the appellant that she needed to submit new and material evidence in order for her claim to be reconsidered and provided her with her appellate rights to appeal its decision. The next communication from the appellant, which is being construed as an informal claim, is documented in a Report of General Information dated on March 15, 2010 whereby it was stated that the appellant called in order to reopen her claim for DIC/death pension due to new and material evidence. She stated that she did not have all the necessary information previously requested and now would like to submit it. On September 22, 2010 the appellant submitted VA Form 21-534, Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child. Thus the RO assigned an effective date of March 15, 2010, the date the appellant's informal claim was received to reopen her claim for survivor's pension as a helpless child in accordance with 38 U.S.C.A. § 5110(a) and 38 C.F.R. §§ 3.155(b), 3.400(q)(2). There are no other documents that already have not been discussed in the file dated between the notice of the August 2004 decision and the appellant's March 2010 informal claim that may be construed as either a notice of disagreement or a claim for the purpose of assigning an earlier effective date for the grant of survivor's pension as a helpless child. Consequently, under the facts presented here, March 15, 2010 is the earliest date that may be assigned for the grant of survivor's pension as a helpless child based on the receipt of new and material evidence to reopen the claim. See 38 C.F.R. § 3.400. An earlier effective date is not warranted. ORDER Entitlement to an effective date earlier than March 15, 2010 for survivor's pension as a helpless child is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs