Citation Nr: 18158404 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-52 582 DATE: December 14, 2018 ORDER Entitlement to an effective date earlier than June 18, 2015 for Dependency and Indemnity Compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in January 2009; the Appellant applied for DIC benefits on February 26, 2009. 2. On June 17, 2009, the RO notified the Appellant that service connection for the cause of the Veteran’s death was denied, as the evidence failed to show that the Veteran’s death was related to military service. The Appellant did not file a notice of disagreement or submit new and material evidence within the applicable appeal period, and as such, the June 2009 rating decision became final. 3. On June 18, 2015, the Appellant filed an application to reopen her claim for service connection for the cause of the Veteran’s death. In October 2015 rating decision, the RO continued to deny the claim for service connection for the cause of the Veteran’s death on the basis that new and material evidence had not been submitted. 4. In April 2016, in light of new and material evidence submitted by the Appellant, the RO granted service connection for the cause of the Veteran’s death, and assigned an effective date of June 18, 2015. 5. Service connection for the cause of the Veteran’s death was awarded from June 18, 2015. 6. There is no evidence of record, dated between June 17, 2009 and June 18, 2015, that could be reasonably construed as a claim, formal or informal, to reopen the prior denial of service connection for the cause of the Veteran’s death. CONCLUSIONS OF LAW 1. The June 2009 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1104 (2017). 2. The criteria for entitlement to an effective date earlier than June 18, 2015 for the award of DIC benefits are not met. 38 U.S.C. §§ 5103, 5103A, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.5, 3.152, 3.155, 3.400(c)(2) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1955 to March 1975. During his period of service, he earned the Air Force Good Conduct Medal and Air Force Longevity Service Award. The Veteran died in January 2009. The Appellant is the Veteran’s surviving spouse. Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, DIC, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.) Further, the effective date of an award of death compensation or DIC for which the application is received within one year from the date of death shall be the first day of the month in which the death occurred; otherwise, the date of receipt of the claim. 38 U.S.C.§ 5110(d); 38 C.F.R. § 3.400(c). A claimant or his or her representative must file a NOD with a determination by the AOJ within one year from the date notice of the determination is mailed to him or her. Otherwise, that determination will become final. 38 C.F.R. § 20.302. There are, however, two exceptions to the rule of finality, the reopening of a claim based upon new and material evidence under 38 U.S.C. § 5108 and revision of a decision based upon clear and unmistakable error (CUE) under 38 U.S.C. § 5109A. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). The United States Court of Appeals for Veterans Claims (Court) has stated the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received and only a request for revision premised on CUE could result in the assignment of an earlier effective date. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”); Flash v. Brown, 8 Vet. App. 332, 340 (1995) (“When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen.”); see also Bingham v. Principi, 18 Vet. App. 470, 475 (2004). The Appellant’s original claim for entitlement to service connection for the cause of the Veteran’s death was denied on June 2009. The Appellant was informed of the denial by letter on June 17, 2009. The Appellant did not file a notice of disagreement and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of that decision. 38 C.F.R. § 3.156(b) (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the June 2009 rating decision became final. 38 U.S.C. § 7105 (2002); 38 C.F.R. § 20.1103 (2017). The record shows that the next communication from the Appellant was received on June 18, 2015, at which time the Appellant filed an application to reopen her claim for DIC. The RO again denied the Appellant’s claim by way of an October 2015 rating decision, on the basis that new and material evidence that raised a reasonable possibility of substantiating the Appellant’s claim had not been submitted. The Appellant filed a timely notice of disagreement in November 2015. Thereafter, by an April 2016 decision, the RO granted service connection for the cause of the Veteran’s death and assigned an effective date of June 18, 2015. Nevertheless, in August 2016, the Appellant filed a notice of disagreement and perfected an appeal in October 2016 as to the assigned effective date. Upon a review of the record, the Board finds the appropriate effective date for the grant of DIC benefits is June 18, 2015, the date the claim to reopen the previously denied claim for DIC benefits was received. As discussed above, the June 2009 rating decision is considered final, as the Appellant did not file a notice of disagreement and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of that decision. As such, the June 2009 rating decision is not subject to collateral attack in the absence of an allegation of CUE, which must be specifically pled. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). While the Appellant and her representative have not specifically alleged a claim of CUE in the June 2009 rating decision, the Board acknowledges the Appellant’s contentions that she is entitled to an earlier effective date, as the RO failed in the duty to assist by not informing for of what information and evidence was needed to substantiate her February 2009 claim for service connection for the cause of the Veteran’s death. However, it is well established that allegations that VA failed in its duty to assist are, as a matter of law, insufficient to form a basis for a valid claim of CUE. Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). The Board further acknowledges the Appellant’s contentions that she is entitled to an earlier effective date due to her difficulty in obtaining a representative and her inexperience with claims process. To the extent that the Veteran may have been inexperienced with the claims process, the absence of such knowledge cannot serve as the basis for an award of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Moreover, at the time of her original claim, the Board notes that the Appellant was represented by the Oregon Department of Veterans Affairs, as evidenced by the VA Form 21-22 received in February 2009. Both she and her representative were sent the March 2009 VCAA notice, which provided information regarding the methods for substantiating a claim, as well as the June 2009 rating decision, which informed the Appellant of her appellate rights. As such, the Board finds that the Appellant had resources on which to call for help in understanding the appeal process and completing her appeal. In light of the foregoing, the Board must conclude that the Appellant has not advanced an allegation of fact or law upon which relief may be granted. Although the Board is sympathetic to the Appellant’s claim, the Board finds that the claim for an effective date earlier than June 18, 2015 for the grant of DIC benefits based on service connection for the cause of the Veteran’s death must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel