Citation Nr: 18142579 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-29 574 DATE: October 17, 2018 ORDER Entitlement to an effective date earlier than November 13, 2012, for the award of service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran died in July 2011. 2. The appellant’s claim for Dependency and Indemnity Compensation (DIC) was received by VA on November 13, 2012. CONCLUSION OF LAW The criteria for an effective date prior to November 13, 2012, for the grant of DIC benefits are not met. 38 U.S.C. §§ 5103, 5103A, 5110(d), 7104; 38 C.F.R. §§ 3.5, 3.152, 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1969 to November 1970. He died in June 2011. The appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date DIC may be awarded to a surviving spouse upon the service-connected death of a Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3,152; see generally 38 U.S.C. Chapter 11. Generally, a Veteran’s death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. For claims involving service-connected death after separation from service, if an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred; otherwise, the effective date for DIC is the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). The undisputed facts in this case show the Veteran died in June 2011. At the time of the Veteran’s death, service connection had not been established for any disability. On November 13, 2012, VA received the appellant’s claim for DIC benefits. The RO granted service connection for the cause of death in the May 2013 rating decision on appeal and assigned November 13, 2012 as the effective date. The appellant contends that, because the Veteran died in June 2011, the effective date of DIC benefits should also be June 2011. She contends that she did not file for DIC benefits sooner as VA employees gave her “misinformation” regarding the filing of a claim for DIC benefits. She does not allege that she filed a claim earlier than November 2012. As the appellant’s claim for DIC was received in November 2012, which is not within one year of the Veteran’s June 2011 death, 38 C.F.R. § 3.400(c)(2) (allowing the effective date of the award to be the first day of the month in which the death occurred) is not applicable. The Board recognizes the unfortunate facts of this case. The appellant credibly reports that she would have applied for DIC benefits sooner had she received the necessary information. However, the power to assign an earlier effective date for DIC benefits based on justice or equity is beyond the Board’s authority. See Shields v. Brown, 8 Vet. App. 346, 351 (1995) (an earlier effective date for DIC benefits is not allowable under equitable estoppel because payment of government benefits must be authorized by statute). The controlling statute and regulation provide that the effective date for a grant of service connection for the cause of a veteran’s death, in a case where the claim for DIC is not received within one year of the veteran’s death, is the date of receipt of the DIC claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). The facts regarding the date of the Veteran’s death and the date of receipt of appellant’s DIC claim are not in dispute. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). As there is no legal basis for assignment of an effective date prior to November 13, 2012 for benefits based on service connection for the cause of the Veteran’s death, the Board finds that an earlier effective date is not   warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel