Citation Nr: 18159206 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-21 863 DATE: December 19, 2018 ORDER Entitlement to an earlier effective date of August 26, 2008, or any other date prior to October 14, 2011, for the grant of death pension benefits is denied. FINDINGS OF FACT 1. The appellant submitted a claim for death pension benefits on August 26, 2008. 2. In September 2008, the regional office sent the appellant a letter requesting clarification regarding incomplete information about the Veteran’s marriages from the August 2008 claim. 3. The appellant did not respond to the September 2008 letter in a timely manner. 4. On October 14, 2011, the appellant submitted a new claim for death pension benefits. 5. In November 2011, death pension benefits were granted as of October 14, 2011. CONCLUSION OF LAW The criteria for an earlier effective date of August 26, 2008, or any other date prior to October 14, 2011, for the grant of death pension benefits have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.158, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1954 to July 1956. He died in March 2007 and the appellant is his surviving spouse. Entitlement to an earlier effective date of August 26, 2008, or any other date prior to October 14, 2011, for the grant of death pension benefits The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. The appellant submitted a claim for death pension benefits on August 26, 2008. She wrote on her application that the Veteran had been married four times, and she provided information on one prior marriage he was in, including a January 1976 divorce decree. In September 2008, a VA regional office sent the appellant a letter stating that she needed to provide information on the Veteran’s complete marital history on an enclosed form. The appellant did not respond, and she submitted a new claim for death pension benefits on October 14, 2011. The claim was granted in November 2011, with an effective date of October 14, 2011. Where the evidence requested in connection with an original claim or a claim for increase is not furnished within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a). The appellant did not clarify that the Veteran had only been married twice until after she submitted her new claim in October 2011. Therefore, her August 2008 claim was abandoned when she did not submit the information requested in September 2008 within a year. See id. Furthermore, when a claim is abandoned and a new claim for the same benefit is later submitted, benefits shall not commence earlier than the date of filing of the new claim. Id. The Federal Circuit has recognized that equitable tolling may be appropriate due to mental illness when the mental illness renders a veteran incapable of rational thought, deliberate decision making, or handling his or her own affairs or unable to function in society. See Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). In addition, the Federal Circuit held that equitable tolling applies when a claimant shows an extraordinary circumstance that caused an inability to file during the requested tolling period, and diligence during the requested tolling period. Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014). If shown, the “clock stops” and the requested period is not counted against the time-period for filing. Id. The appellant wrote in November 2014 that the August 2008 application stated that the Veteran was married four times because of the county veterans service officer who assisted her. However, the record does not show, and the appellant has not contended, that there was a circumstance making her unable to respond to the September 2008 request for clarification from the regional office. Therefore, equitable tolling is not established. The Veteran submitted a new claim for death pension benefits on October 14, 2011, which is the current effective date. October 14, 2011, is the proper effective date for the grant of death pension benefits because the claim was filed more than a year after the Veteran’s death and the prior claim was abandoned. See 38 C.F.R. §§ 3.158(a), 3.400(c)(2). Therefore, the claim for an earlier effective date of August 26, 2008, or any other date prior to October 14, 2011, for the grant of death pension benefits must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel