Citation Nr: 18140068 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-27 836 DATE: October 2, 2018 ORDER The claim for an effective date earlier than March 28, 2014, for the grant of service connection for the cause of the Veteran’s death (and for Dependency and Indemnity Compensation), is denied. FINDINGS OF FACT 1. In a November 2010 decision, the Veteran did not appeal the Board of Veterans’ Appeals (Board) decision, which denied the appellant’s claim to reopen the issue of service connection for the cause of the Veteran’s death. 2. On March 28, 2014, the appellant filed a claim to reopen service connection for cause of the Veteran’s death. 3. In February 2016, the RO granted service connection for cause of the Veteran’s death. CONCLUSION OF LAW The criteria for an effective date earlier than March 28, 2014, for the grant 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 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1959 to July 1982. This matter comes before the Board on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The claim for an effective date earlier than March 28, 2014, for the grant of service connection for the cause of the Veteran’s death (and for Dependency and Indemnity Compensation), is denied. The appellant claims entitlement to an effective date earlier than March 28, 2014 for the grant of service connection for the cause of the Veteran’s death. Service connection for cause of a veteran’s death is warranted when service-connected disability causes or contributes to death. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.312(a) (2018). Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran who died from service-connected disability. 38 U.S.C. § 1310 (2012); 38 C.F.R. § 3.5 (2018). The Veteran died in August 1998. In September 1998, the appellant filed an original claim for the cause of the Veteran’s death. The RO denied her claim in an unappealed February 1999 rating decision, and denied a claim to reopen the claim in an unappealed March 2003 rating. In November 2008, the RO denied another claim to reopen the claim, which the Veteran appealed to the Board. In a November 2010 decision the appellant did not appeal, the Board denied the claim to reopen. That decision is final. 38 U.S.C. § 7104. Generally, a claim which has been denied in a Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been finally disallowed, VA shall reopen the claim and review the former disposition of the claim. On March 28, 2014, the RO received the appellant’s most recent claim to reopen service connection for the cause of the Veteran’s death. After initially denying the claim in July 2014 rating decisions, the RO reopened the claim in February 2016, and then granted the claim. As noted earlier, the RO found an effective date of March 28, 2014 warranted for service connection and for the award of DIC benefits. The appellant disputes the assigned effective date. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits. To constitute a claim, the claim must be presented on a specific claim form prescribed by the VA, which is available online or at the local RO. Given that the appeal involves correspondence prior to that date, the pre-amendment rules follow. Prior to March 2015, a “claim” was defined broadly to include 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). Mere presence of evidence in the record of the existence of a disability does not establish an intent to seek service connection. To establish a claim prior to March 2015, the claimant must have asserted the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). The record contains no evidence or statements from the appellant dated between issuance of the November 2010 final Board decision and the March 28, 2014 claim to reopen. As such, the controlling date in this matter is the date of claim to reopen on that date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The law is clear that the effective date for DIC benefits based on a claim reopened after final disallowance is not the date of the initial claim, or the date entitlement arose. Indeed, the effective date cannot be any earlier than date of receipt of the claim to reopen. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Inasmuch as the March 28, 2014 claim to reopen service connection for the cause of the Veteran’s is the earliest claim following the final Board decision, it is the controlling date here. That date is the proper assigned effective date for the award of benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. (Continued on the next page)   As the preponderance of the evidence is against the appellant’s claim to an earlier effective date, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel