Citation Nr: 1754936 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-24 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than October 22, 2013, for the award of dependency and indemnity compensation (DIC) benefits based on service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from April 1943 to December 1945. He passed away in April 2011. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) of Veterans Benefits Administration, which granted DIC benefits based on service connection for the cause of the Veteran's death effective October 22, 2013. The appellant timely appealed the decision as to the assigned effective date. Jurisdiction of the appeal is now with the RO in New York, New York. The Board notes that prior to her current representation, the appellant was represented by Disabled American Veterans (DAV). VA received a signed VA Form 21-22 in March 2014, changing representation from the DAV to Attorney J. Michael Woods. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran passed away on April 26, 2011. 2. The appellant's original application for DIC compensation benefits was received on May 23, 2011. In addition, the appellant filed an application with the Social Security Administration (SSA) for survivor's benefits on June 6, 2011. 3. On August 20, 2012, the RO issued a rating decision which denied service connection for the cause of the Veteran's death. The appellant did not appeal the decision or submit any new and material evidence within one year of the August 2012 decision, and it became final. 4. On October 22, 2013, the appellant filed an application to reopen the claim for DIC compensation benefits. In a January 2014 rating decision, the RO continued to deny the claim for service connection for the cause of the Veteran's death on the basis that new and material evidence had not been submitted. 5. In February 2017, in light of new medical evidence submitted by the appellant, the RO granted service connection for the cause of the Veteran's death, and assigned an effective date of October 22, 2013. 6. There is no evidence of record, dated between August 20, 2012, and October 22, 2013, that could be reasonably construed as a claim, formal or informal, to reopen the prior denial of service connection for the cause of the Veteran's death. CONCLUSIONS OF LAW 1. The August 2012 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1104 (2017). 2. The criteria for an effective date earlier than October 22, 2013, for the grant of DIC benefits are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.159, 3.160, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014). The appeal in this case arises from the initial grant of DIC benefits. The United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has obtained service treatment records and has assisted the appellant in obtaining evidence. All known and available records relevant to the issue being adjudicated on appeal have been obtained and associated with the claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim being adjudicated at this time. II. Earlier Effective Date Effective dates for the award of VA benefits are generally governed by 38 U.S.C.A. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, DIC, 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 of an award of death compensation or DIC will be the first day of the month in which the death occurred if the application is received within one year from the date of death; otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2) (2017). Where compensation is awarded pursuant to a liberalizing law or a liberalizing VA issue, the effective date of the increased shall be fixed in accordance with facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C.A. § 5110 (g) (West 2014); 38 C.F.R. § 3.114(a) (2017). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). However, if a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In order to be eligible for a retroactive award, the claimant must show that all eligibility criteria for the benefits existed at the time of the effective date of the law or administrative issue and continuously thereafter. 38 C.F.R. § 3.114(a). The appellant filed a claim to reopen the prior claim for DIC benefits based on service connection for the cause of the Veteran's death that was received on October 22, 2013. In the February 2017 rating decision that is the subject of this appeal, the RO granted service connection for the cause of the Veteran's death, effective October 22, 2013. The appellant asserts that the effective date for DIC benefits based on service connection for the cause of the Veteran's death should be the date of the Veteran's death on April 26, 2011, as she filed an application with SSA for survivor's benefits on June 6, 2011. The Board recognizes that any claim sufficient to reflect "an intent to apply for survivor's benefits, that is filed with SSA will suffice to establish the effective date for DIC" for VA purposes. See 38 C.F.R. § 3.153 ("An application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration. The receipt of such an application (or copy thereof) by the Department of Veterans Affairs will not preclude a request for any necessary evidence."); Kay v. Principi, 16 Vet. App. 529 (2002) (noting that VA's Adjudication Procedures Manual set forth a broad definition for the types of applications that were considered joint applications for VA and SSA benefits). The effective date for DIC benefits shall be 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. 38 C.F.R. § 3.400 (c)(2). However, the April 2011 filing with the SSA does not make the appellant eligible for a retroactive award, as the AOJ subsequently denied the original claim in August 2012, which became final since the Veteran did not appeal this decision. See 38 U.S.C. §§ 5104, 7105(c) (West 2014); see also 38 C.F.R. §§ 3.160 (d), 3.156(b), 20.200, 20.302(a), 20.1103 (2017). Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). There is no indication that the appellant submitted a claim, formal or informal, between the August 2012 final denial and the October 22, 2013 reopened claim. See 38 C.F.R. §§ 3.151, 3.155 (2017). In this vein, no correspondence was received from the appellant between these dates that indicated an intent to apply for service-connected death benefits, and the appellant does not contend otherwise. As October 22, 2013, is the date of receipt of the appellant's claim to reopen, entitlement to an effective prior to October 22, 2013, is not warranted. An effective date earlier than October 22, 2013 is not warranted because this was the first date that VA received a written communication from the appellant seeking to reopen the previously denied claim of to DIC based upon entitlement to service connection for the cause of the Veteran's death. For the reasons noted above, the Board finds that the appellant's claim for an effective date earlier than October 22, 2013, for the grant of DIC benefits based on service connection for the cause of the Veteran's death must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine but finds that the doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). For these reasons, the claim is denied. ORDER Entitlement to an effective date earlier than October 22, 2013, for the award of DIC benefits based on service connection for the cause of the Veteran's death is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs