Citation Nr: 18153811 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-55 288 DATE: November 29, 2018 ORDER An effective date prior to June 30, 2015 for a grant of Dependency and Indemnity Compensation (DIC), based on service connection for the cause of the Veteran’s death, is denied. FINDINGS OF FACT 1. On June 30, 2015, and no earlier, the appellant’s claim for DIC was received. 2. In September 2015, the RO awarded DIC to the appellant, based on service connection for the cause of the Veteran’s death, and assigned an effective date of June 30, 2015. CONCLUSION OF LAW The criteria for an effective date prior to June 30, 2015 for a grant of DIC based on service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. §§ 5107, 5110(b)(2), 7105; 38 C.F.R. §§ 3.102, 3.159, 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from May 1966 to January 1969. He died in March 1997. The appellant is the Veteran’s widow. 1. Earlier Effective Date, DIC. The appellant argues that an effective date prior to June 30, 2015 is warranted for the grant of service connection for the cause of the Veteran’s death, and the derivative grant of DIC. She argues that the correct date should be April 15, 2015. Specifically, she asserts that on April 15, 2015, she gave documentation sufficient for a DIC claim to an employee of her veterans’ service organization (VSO), but that the VSO employee failed to file the paperwork with VA until June 30, 2015. Grants of DIC benefits under 38 U.S.C. § 1310 are based on grants of service connection for the cause of a veteran’s death; the terms “DIC” and “service connection for the cause of death” are often used interchangeably in discussing such DIC effective dates. The relevant history of this claim is as follows: The Veteran is shown to have had service in the Republic of Vietnam. The Veteran died in March 1997. The certificate of death states that the cause of his death was metastatic lung carcinoma. On April 29, 2015, Ms. J, an employee of a VSO, sent a medical statement via FAX to the RO in Philadelphia, Pennsylvania, in which a private physician stated that the Veteran died from lung cancer in 1997. On June 30, 2015, Ms. J sent VA a cover letter via FAX, dated April 15, 2015, as well as copies of the Veteran’s discharge (DD Form 214), the Veteran’s death certificate, the appellant’s marriage certificate, a power of attorney naming the VSO as the appellant’s representative (VA Form 21-22), and an application for DIC, death pension and/or accrued benefits (VA Form 21-534EZ). In September 2015, the RO granted service connection the cause of the Veteran’s death, based on the presumptive provisions for veterans presumed to have been exposed to Agent Orange. See 38 C.F.R. § § 3.307, 3.309. The RO also awarded DIC benefits on the basis that the Veteran’s cause of death was related to his service. See 38 U.S.C. § 1310. The RO assigned an effective date for DIC of June 30, 2015. DIC is a benefit payable to a veteran’s surviving spouse or child because of his service-connected death. In such a claim, evidence must be presented that links the fatal disease to a period of military service or to an already service-connected disability. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.312. Evidence must be presented showing that a service-connected disability is either the principal or contributory cause of death. A service-connected disability is the principal cause of death when that disability, either singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. A contributory cause of death must be causally connected to death and must have substantially or materially contributed to death; combined to cause death; or aided or lent assistance to the production of death. 38 C.F.R. § 3.312. Generally, the effective date of an award of DIC for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 38 C.F.R. § 3.400 (c)(2) clarifies that 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 1 year after the date of death; otherwise, it is the date of receipt of claim. A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “[s]ection 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid.” Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. The Board finds that the criteria for an earlier effective date have not been met. With regard to the FAX sent on April 29, 2015, this document did not identify the appellant in any way, nor did it identify a benefit being sought, or express an intent to seek a benefit. 38 C.F.R. § 3.155 (a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). In the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). The mere presence of medical evidence does not establish an intent on the part of the claimant to seek service connection. Brannon v. West, 12 Vet. App. 32, 35 (1998). VA is not required to anticipate, or assume an intent to file, any potential claim for a particular benefit where no intention to raise it was expressed. Id., at 35. Accordingly, this document may not serve as a basis upon which to grant an earlier effective date. The earliest evidence of a claim for DIC is the documentation filed with VA on June 30, 2015, and that was the effective date for DIC assigned by the RO. As there is insufficient evidence to show that a claim for DIC was filed at any time prior to June 30, 2015, the claim must be denied. See 38 C.F.R. § 3.400 (c)(2). In reaching this decision, the Board has considered the appellant’s argument that the effective date should be April 15, 2015, because that is the date on which she filed the required paperwork with her VSO. VA adjudicators are assumed to have constructive notice of VA records existing at the time of the decision. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). However, this is not a case in which notice was filed with the wrong VA office, and there is no basis to extend the doctrine of constructive notice to written statements or documentation submitted by an appellant to a VSO. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104. Therefore, this argument does not provide a basis for a grant of the claim. Here, the record does not include any communication from the appellant or her representative that was received prior to June 20, 2015, that may reasonably be construed as an indication she was seeking service connection for the cause of the Veteran’s death, or DIC. The claim for an earlier effective date for the award of service connection for the cause of the Veteran’s death and DIC benefits is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.E., Counsel