Citation Nr: 1801186 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-32 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an earlier effective date for service connection for the Veteran's cause of death. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to March 1970. The appellant is the Veteran's widow This case arose to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran underwent a hearing with the undersigned Veterans Law Judge (VLJ) in March 2017. FINDINGS OF FACT 1. A notification dated March 24, 1980 notified the Appellant that the evidence did not demonstrate that the Veteran's death was due to a service-connected condition. 2. The Appellant did not file another claim for service connection for cause of death until September 2007. CONCLUSION OF LAW The criteria for an effective date earlier than September 2007 for entitlement to service connection for the Veteran's cause of death are not met. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Appellant contends that she should receive an effective date of 1980, the date of the Veteran's death, for her benefits. For the following reasons, the Board finds an earlier effective date not warranted. In general, the effective date for the grant of service connection for death based upon an original claim or a claim reopened after final disallowance is either the day following the death or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b). The law provides for a presumption of regularity with regard to processes and procedures throughout the VA administrative process. See generally, Marsh v. Nicholson, 19 Vet. App. 381, 386-87 (2005); Crain v. Principi, 17 Vet. App. 182, 186 (2003); Redding v. West, 13 Vet. App. 512, 515 (2000). Yet we recognize that the presumption of regularity is not absolute and may be rebutted by the submission of "clear evidence to the contrary." Warfield v. Gober, 10 Vet. App. 483, 486 (1997). In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An 'assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process.' Jones v. West, 12 Vet. App. 98, 102 (1998). Clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993) (finding the existence of clear evidence to rebut the presumption of regularity where the Board mailed a decision to '244 Allen St., East Montevallo, AL 35115' when the claimant's correct address was '244 Island St. East, Montevallo, AL 35115'); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam order) (finding the existence of clear evidence to rebut the presumption of regularity where the Board mailed its decision to '2313 Isabela, Philippines' when the claimant's correct address was '3313 Isabela, Philippines'). In this situation, the record indicates that the Appellant filed for funeral benefits immediately following the Veteran's death in 1980. A notification dated March 24, 1980 notified the Appellant she had received payment for the funeral benefits, and that the evidence did not demonstrate that the Veteran's death was due to a service-connected condition. The document is date-stamped, and there is no indication in the file that it was returned in the mail as undeliverable. In September 2007, the Appellant filed for service connection for cause of death, and her claim was eventually granted. At the hearing, the Appellant testified that she believes the effective date of her benefits should be the date of the Veteran's death because she did not know at the time she was able to file for service connection for the cause of the Veteran's death. Alternatively, she argued that she never received the March 1980 notification that her husband's death was found to be not service-connected, so her original claim was still open when she filed in September 2007. Applying the law to the facts of the case, the Board regrettably finds that an earlier effective date is not warranted. First, although the Appellant states that she did not realize that she was able to file for service connection for cause of death in 1980, the Board cannot grant benefits due to an ignorance of the law. Second, although the Appellant states that she never received the March 1980 notification, the presumption of regularity holds with regard to processes and procedures throughout the VA administrative process. First, the appellant did receive a payment for funeral benefits at that time. Moreover, the Appellant has not put clear evidence sufficient to rebut the presumption of regularity. In this situation, all of the records in the Appellant's file are properly dated, appear in the correct order, and no documents appear to be missing. The Board regrets the appellant's situation and is very sympathetic to her claim, but is unable to assist her at this time due to the requirements of the law. Accordingly, the Board finds an earlier effective date not warranted. ORDER Entitlement to an earlier effective date denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs