Citation Nr: 1805505 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-22 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than August 24, 2004, for the award of service connection for cause of the Veteran's death. 2. Entitlement to an effective date earlier than August 24, 2004, for basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel INTRODUCTION The appellant is the surviving spouse of a Veteran who had active military service in the U.S. Army from June 1968 to March 1970. His awards and decorations include the Purple Heart medal and Combat Infantryman Badge. He died in September 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In November 2017, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the Veteran's claims file. FINDINGS OF FACT 1. An unappealed January 1973 decision denied the Appellant's claim for death benefits. 2. After the January 1973 decision, the first communication from the Appellant seeking to reopen a claim for death benefits was received on August 24, 2004. 3. Basic eligibility for Dependents' Educational Assistance benefits did not begin earlier than August 24, 2004. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 24, 2004, for the award of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date earlier than August 24, 2004, for basic eligibility for Chapter 35 Dependents' Educational Assistance benefits have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.310 , 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, required notice was provided, and neither the Appellant nor her representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify has been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All pertinent records have been obtained, to the extent available. Finally, the neither the Appellant nor her representative has raised any other issues with the duty to notify or 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 the duty to assist argument). For these reasons, the Board concludes that VA has fulfilled its duty to assist the Appellant in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Legal Criteria, Factual Background, and Analysis Earlier effective date - Service connection for the cause of the Veteran's death The Appellant seeks an effective date prior to August 24, 2004 for the award of service connection for the cause of the Veteran's death. Generally, the assignment of an effective date is governed by 38 U.S.C. § 5110. 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. § 5110(a) (2012). The implementing regulation similarly states that except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (2017). Further, 38 U.S.C. § 5110(d)(1) provides that the effective date of an award of death compensation/death and indemnity compensation, for which the application is received within one year from the date of death, shall be the first day of the month in which the death occurred. See also 38 C.F.R. § 3.400(c)(2) (the effective date for service-connected death after separation from service is 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 claim.). The facts of the case are not in dispute. The Veteran died in September 1972. Appellant originally filed a claim for Dependency or Indemnity Compensation (DIC) or Death Pension benefits in December 1972. However, a January 1973 decision found that the Appellant was not entitled to death benefits. The Appellant did not initiate an appeal or submit new and material evidence within one year of that decision; therefore, it is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017). The Board also acknowledges that prior decisions can be vitiated by a finding of clear and unmistakable evidence (CUE) in such decisions (see Routen v. West, 142 F.3d 1434, 1438 (Fed. Cir. 1998) (listing CUE as one of three exceptions to the rules regarding finality and effective dates); however, CUE in the January 1973 decision has not been alleged and that decision is a legal bar to an effective date prior to the date of the decision. Subsequent to the January 1973 decision, the earliest communication from the Appellant in the record evidencing an intent to reopen the claim for entitlement to service connection for cause of the Veteran's death is a VA Form 21-534, Application for DIC or Death Pension, that was received by VA on August 24, 2004. Significantly, it is not the Appellant's contention that she filed a claim to reopen, informal or otherwise, prior to August 24, 2004. Instead, at the November 2017 Board hearing, it was asserted that the Appellant's claim was granted in February 2011 due to the receipt of a medical opinion dated that same month. The Appellant and her representative argue that the medical opinion should be considered in conjunction with her earlier claim for benefits that was received in December 1972. However, as was explained above, that claim was decided in a January 1973 decision that is now final. Under governing law, generally (with exceptions none of which are here applicable) the effective date of an award based on a reopened claim following a prior final denial of the claim cannot be earlier than the date of receipt of the claim to reopen. Therefore, the effective date for the award of service connection for cause of the Veteran's death is August 24, 2004. Accordingly, the appeal seeking an effective date prior to August 24, 2004, for the grant of service connection for the cause of the Veteran's death must be denied. Earlier effective date - Dependents' Educational Assistance Benefits Regarding the Veteran's claim of entitlement to an earlier effective date for Dependents' Educational Assistance benefits pursuant to 38 U.S.C. Chapter 35, the Board finds that entitlement to an effective date earlier than August 24, 2004 is not warranted. Survivors' and Dependents' Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. See 38 U.S.C. §§ 3500, 3501 (2012); 38 38 C.F.R. §§ 21.3020, 21.3021 (2017). Basic eligibility for certification of Dependents' Educational Assistance exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807 (2017). The Appellant was awarded eligibility to Dependents' Educational Assistance effective August 24, 2004, based upon the finding that the evidence showed that the Veteran died as a result of a service-connected disability. Since the Veteran's claim for service connection for cause of death was received on August 24, 2004, and the evidence of record does not show that receipt of the claim was received prior to this date, August 24, 2004 is the earliest date at which the Appellant could establish eligibility for Chapter 35 benefits. Accordingly, entitlement to an earlier effective date for Dependents' Educational Assistance benefits is denied. ORDER An effective date earlier than August 24, 2004, for the grant of service connection for the cause of the Veteran's death, is denied. An effective date earlier than August 24, 2004, for basic eligibility to Dependents' Educational Assistance is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs