Citation Nr: 1814569 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-08 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Milwaukee Pension Center in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than February 12, 2007, for award of dependency and indemnity compensation (DIC) benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from February 1955 to October 1956. The Veteran died in January 1998. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC), which granted service connection for the Veteran's cause of death. The appellant appealed the effective date of that award. In a statement dated March 6, 2014 and received by VA on March 17, 2014, the appellant contended that clear and unmistakable errors occurred in the process of granting her benefits. Specifically, she stated that the grant relied on the opinion of Dr. A.R, which was of record at the time of the earlier denial and should have been given equally probative weight at the time it was initially received as it was at the time of the later grant. On first glance, this suggests an allegation of clear and unmistakable error (CUE) in the January 2006 rating decision. The agency of original jurisdiction has not adjudicated a request to revise a prior decision based on clear and unmistakable error, a request that is different than the direct appeal that it did decide. The Board therefore does not have jurisdiction to address a request for revision based on clear and unmistakable error and that request is referred to the agency of original jurisdiction for appropriate action. FINDINGS OF FACT 1. Entitlement to DIC benefits was denied in unappealed July 1998, October 2001, and January 2006 decisions of the agency of original jurisdiction. 2. On February 12, 2007, the appellant filed to reopen her claims for DIC benefits based on service connection for cause of the Veteran's death. CONCLUSIONS OF LAW 1. The July 1998, October 2001, and January 2006 decisions denying entitlement to DIC benefits are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The criteria for establishing an effective date prior to February 12, 2007, for the award of DIC benefits have not all been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017). The appellant is seeking an effective date earlier than February 12, 2007, for award of DIC benefits. She has argued that this award should instead go back to the date of the Veteran's death in January 1998. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). In this case, the appellant filed her original DIC claim in February 1998. In a July 1998 rating decision, service connection for cause of death and entitlement to DIC were denied. She did not appeal this decision or submit new and material evidence within one year of its issuance. Therefore, this rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1100. The appellant filed a claim to reopen in September 2000 that was denied in an October 2001 rating decision. Again, she did not appeal this decision or submit new and material evidence within one year of its issuance and this rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1100. The appellant filed another claim to reopen in September 2005. In a January 2006 rating decision, the claim was reopened, considered on the merits, and denied. She did not appeal this decision or submit new and material evidence within one year of its issuance and this rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1100. In February 2007, the appellant filed another claim to reopen. This claim was ultimately successful and the effective date of her award of DIC benefits is currently the date of this claim, February 12, 2007. There is no claim, statement or other correspondence of record received after the January 2006 rating decision and prior to February 12, 2007, which can be construed as a claim to reopen service connection for DIC benefits. For the reasons stated above, the preponderance of the evidence is against entitlement to an effective date earlier February 12, 2007, for the award of DIC benefits. The Board acknowledges the arguments set forth by the appellant. Under the law, however, the effective date for a grant following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q) (1) (ii). As such, the agency of original jurisdiction assigned the earliest possible effective date for its grant of the reopened claim, which based on the procedural history as outlined in detail above was determined to be February 12, 2007. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. ORDER An effective date earlier than February 12, 2007, for award of DIC benefits is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs