Citation Nr: 1805751 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-28 498A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than December 18, 2009 for entitlement to nonservice-connected survivor's pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to April 1974. He died in July 2005. The appellant is the surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Pension Management Center in St. Paul, Minnesota. Original jurisdiction is held by the VA Regional Office (RO) in Atlanta, Georgia. FINDING OF FACT The Appellant filed a claim for a nonservice-connected survivor's pension that was received on December 18, 2009, and her claim was granted as of that date. CONCLUSION OF LAW The criteria entitlement to an effective date earlier than December 18, 2009 for entitlement to nonservice-connected survivor's pension have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.3, 3.400, 3.402 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). With respect to the Appellant's effective date claim, no notice is necessary, because the outcome of this issue depends exclusively on documents that are already contained in the claims file. An appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide her with notice of the law and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. Nelson v. Principi, 18 Vet. App. 407 (2004). VA also has a duty to assist the Appellant in the development of the claim. The Board finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issue has been obtained. VA treatment records, VA examination reports, and lay statements have been obtained. The Appellant also testified at a personal hearing in November 2017, and a transcript of the hearing is contained in the record. Earlier Effective Date The Appellant contends that she is entitled to an earlier effective date for her survivor's pension. Unfortunately, the criteria for an earlier effective date have not been met. The record shows that the Appellant first filed a claim seeking a survivor's pension in August 2005. Her claim was denied in September 2005. The Appellant eventually filed a claim another claim for a survivor's pension that was received on December 18, 2009, and, in June 2010, Appellant's request relief was granted; and she was granted a survivor's pension as of the date her claim was received. The Appellant appealed the effective date of her survivor's pension. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of a nonservice-connected survivors pension will be the first day of the month in which the Veteran's death occurred if the claim is received within one year of the Veteran's death or otherwise the date of receipt of claim. 38 C.F.R. § 3.400(c)(3). Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Appellant to be awarded an effective date based on an earlier claim, she would have to show clear and unmistakable error (CUE) in the prior denials of the claim. See Flash v. Brown, 8 Vet. App. 332 (1995). Here, however, the Appellant has not alleged CUE in the previous denials of her claims for a survivor's pension. Thus, since previous denials are final, the effective date for that grant of pension was appropriately assigned as of the date the appellant's claim to reopen was received (December 18, 2009). See Ingram v. Nicholson, 21 Vet. App. 232 (2007). This is a case involving a claim for a survivor's pension refiled more than one year after the Veteran's death. Accordingly, the Appellant is entitled to an effective date of the later of the date entitlement arose or the date the claim was received. As the Appellant refiled a claim for survivor's pension on December 18, 2009, that is the earliest effective date that could possibly be assigned. Accordingly, entitlement to an earlier effective date is denied. In reaching this decision, the Board would like to express that it is extremely sympathetic toward the appellant's claim and is deeply appreciative of the Veteran's military service. Unfortunately, the Board is ultimately bound by the law passed by Congress, and this decision is dictated by the relevant statutes and regulations. The Board is without authority to grant benefits simply because it might perceive the result to be equitable. See 38 U.S.C.A. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER An effective date earlier than December 18, 2009 for entitlement to nonservice-connected survivor's pension is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs