Citation Nr: 18154440 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-16 092 DATE: November 29, 2018 ORDER The part of an August 9, 2018 Board decision that denied the claim for entitlement to an earlier effective date prior to November 17, 2015 for the award of non-service-connected pension benefits is VACATED. Entitlement to an effective date of July 24, 2014 for the award of non-service-connected pension benefits is GRANTED. FINDINGS OF FACT 1. The Veteran was denied due process of law in the part of the August 2018 Board decision addressing entitlement to an earlier effective date for non-service connected pension, due to an incomplete record. Thus, only the part of the August 2018 Board decision regarding this issue will be vacated. The remainder of that decision, which denied a separate claim for entitlement to service connection for diabetes mellitus, as well as remanded a separate claim for entitlement to service connection for a right wrist disability, remains undisturbed. 2. Resolving all reasonable doubt in the Veteran’s favor, an informal claim for non-service connected pension benefits was received on July 24, 2014. CONCLUSIONS OF LAW 1. The part of the August 2018 Board decision that denied entitlement to an effective date earlier than November 17, 2015, for the award of non-service connected pension, is vacated. 38 U.S.C. § 7104 (a) (West 2017); 38 C.F.R. § 20.904 (2017). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for earlier effective date prior to November 17, 2015 for an award of non-service-connected pension have been met. 38 U.S.C. §§ 501, 5101, 5102(c), 5110(a), 5110(b)(4)(A), 5110(b)(4)(B) (West 2017); 38 C.F.R. §§ 3.151, 3.400(b), (b)(ii), (b)(1)(ii)(B) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Air Force from September 1974 to July 1975. During this time, he was awarded the National Defense Service Medal. This matter comes to the Board of Veteran’s Appeals (Board) on appeal from a February 2016 rating decision from a Department of Veterans Affairs (VA) regional office (RO) in Philadelphia, Pennsylvania. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a) (2017); 38 C.F.R. § 20.904 (2017). A denial of due process is one particular ground for vacating a Board decision. See 38 C.F.R. § 20.904 (a). In the present case, the Veteran was denied due process of law in the part of the August 2018 Board decision regarding his claim for an earlier effective date for non-service connected pension. In particular, after the August 2018 Board decision, the Veteran submitted an envelope sent to him by the VA post marked July 25, 2014, which he contended was sent in response to a call that he place to VA on July 24, 2014, and contained claim application forms. See September 2018 Correspondence. The VA envelope postmarked July 25, 2014 was in existence prior to the issuance of the August 2018 Board decision; however, the undersigned Veterans Law Judge was not aware of the postmarked VA envelope, and thus it was not considered in the August 2018 Board decision. Upon further of review of the record, the Board observes that is a notation in VBMS of the telephone contact reported by the Veteran that occurred on July 24, 2014. Therefore, the Board finds that consideration of the earlier effective date for the non-service connected pension issue was based on an incomplete review of the record, such that the Veteran was not afforded full due process of law. See 38 C.F.R. § 20.904 (a). Accordingly, the part of the August 2018 Board decision that denied entitlement to an earlier effective date prior to November 17, 2015 for non-service connected pension is vacated. This vacatur is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100 (b). Rather, in the present decision below, the Board will reconsider the Veteran’s claim for an earlier effective date prior to November 17, 2015 for non-service connected pension, as if the specific portion of the previous August 2018 Board decision regarding this particular claim had never been issued. See 38 C.F.R. § 20.904 (a). Entitlement to an earlier effective date prior to November 17, 2015 for non-service connected pension The Veteran asserts entitlement to an effective date earlier than November 17, 2015 for the award of non-service connected pension. Specifically, the Veteran testified at his May 2018 Board hearing that he initiated a claim for non-service connected pension benefits on November 17, 2015. See May 2018 Board Hearing Transcript. He explained while he filed for the pension in 2015, one of the conditions that was the basis for filing for the pension was Hepatitis C, and since he had contracted that disease 30 years prior to filing for the pension, he believed the pension should date back to when that disease first manifested. Id. He alternatively argued that because he had called the Philadelphia RO regarding filing for disability pension a year prior to filing his claim, the award of the pension should at the very least date back to a year prior to his filing an initial claim. Id. Historically, the RO established an effective date for non-service connected pension of November 17, 2015. See February 2016 Rating Decision (awarding non-service connected pension, effective November 17, 2015). The assignment of the November 17, 2015 effective date was based upon the date the RO received the Veteran’s initial claim. Id. Regarding disability pension benefits, an award of disability pension may not be effective prior to the date entitlement arose. 38 C.F.R. §3.400(b). For claims received on or after October 1, 1984, the effective date is considered the date of the receipt of the claim. 38 C.F.R. §3.400(b)(ii). Further, a disability pension claim received on or after October 1, 1984 may only be effective on the date the veteran became permanently and totally disabled if, within one year of becoming permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran’s own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran first became permanently and totally disabled. 38 C.F.R. §3.400(b)(1)(ii)(B). Furthermore, with respect to the date of claim, current VA regulations mandate that a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. However, effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. §§ 3.1 (p), 3.155(a), 3.155(a) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999); Brannon, 12 Vet. App. at 34-35. As concerning the Veteran’s assertions regarding the earlier effective date, the Veteran contends that the effective date of his claim should date back to 30 years prior, or alternatively, back to July 24, 2014, the date he contends he initially intended to file a claim. See January 23, 2017 Notice of Disagreement. Regarding the Veteran’s assertion that his Hepatitis C first manifested 30 years prior and thus justifies an earlier effective date, 38 C.F.R. §3.400(b)(1)(ii)(B) specifically sets forth the circumstances under which an earlier effective date for a claim for disability pension received on or after October 1, 1984 may be granted, and, as discussed above, the evidence of record does not reflect that the instant case fulfills the particular criteria. Nor is VA is required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, 12 Vet. App. at 35; Talbert, 7 Vet. App. at 356-57. However, as noted previously above, the Veteran filed a request for reconsideration in September 2018, to which he attached a scanned image of an envelope he received from the VA postmarked July 25, 2014, which he asserts was sent to him in response to a call he placed on July 24, 2014 to the VA requesting to file a claim for nonservice-connected pension benefits. See September 2018 Correspondence. He further asserted that the envelope contained application forms so that he could submit a written claim for non-service connected pension, as evidenced by writing on the back of the envelope referencing VA Forms 21-527EZ and 21-4142. Id. Resolving the benefit of the doubt in the Veteran’s favor, the Board finds that this envelope corroborates the Veteran’s assertion that he initiated an informal claim for non-service connected pension benefits on July 24, 2014 and the Board finds his contention to that effect credible. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board concludes that July 24, 2014 is the date the RO received the Veteran’s informal claim for non-service connected pension, and is thus the proper effective date for the grant non-service-connected pension benefits. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400(b), (b)(ii), (b)(1)(ii)(B); Gilbert, 1 Vet. App. at 55. In this regard, the Board observes that is a Note contained in the Veteran’s electronic VBMS folder noting that on July 24, 2015, the Veteran indicated that he was requesting to a file a claim for non-service pension benefit as he was unable to work and had no income. The Note indicates that a VA Form 21-527ez was being mailed to the Veteran. While an actual copy of the letter sent to the Veteran is not of record, the notation along with the copy of the envelopment dated the following day provided by the Veteran corroborate the Veteran’s assertion that he contacted VA for purposes of claiming entitlement to nonservice-connected pension benefits. As the Veteran later responded by filing a formal claim for benefits within one year the Board has concluded that an informal claim for benefits was received on July 24, 2015. Accordingly, an effective date of July 24, 2014 is granted for the award of nonservice-connected benefits. There is no other communication of record prior to July 24, 2014, indicating an intent to file for such benefits. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel