Citation Nr: 18131017 Decision Date: 08/30/18 Archive Date: 08/30/18 DOCKET NO. 15-41 233A DATE: August 30, 2018 ORDER Entitlement to an effective date of October 27, 2005, for service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The appellant filed an application for Lump Sum Death Payment (LSDP) benefits with the Social Security Administration (SSA) on October 27, 2005. 2. In April 2012, the appellant filed a claim for dependency and indemnity compensation (DIC) based on service connection for the cause of the Veteran’s death, which was granted in a May 2012 rating decision. 3. The Veteran’s October 2005 claim with SSA was sufficient to constitute an application for survivors’ benefits for purposes of establishing the effective date of the appellant’s entitlement to DIC. CONCLUSION OF LAW The criteria for an effective date of October 27, 2005, for the grant of service connection for the cause of the Veteran’s death are met. 38 U.S.C. §§ 5103, 5105, 5110 (2012); 38 C.F.R. §§ 3.153, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1965 to January 1969. The Veteran died in June 2005. The appellant is the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date earlier than May 24, 2011, for service connection for the cause of the Veteran’s death The Veteran died in June 2005. On October 27, 2005, the appellant filed an application for LSDP with SSA. On May 24, 2011, the appellant filed an application for widow’s insurance benefits with SSA. The appellant filed an application for DIC with VA on April 13, 2012. A May 2012 rating decision granted entitlement to service connection for cause of the Veteran’s death. A September 2015 rating decision granted an effective date of May 24, 2011, for service connection for the cause of the Veteran’s death, as this was the date the appellant filed for SSA widow’s insurance benefits. The appellant contends the she is entitled to an effective date earlier than May 24, 2011, based on her application for LSDP that she filed with SSA on October 27, 2005. The appellant contends that an application for LSDP is an application for survivors’ benefits with SSA, which should be considered a claim for VA death benefits under 38 C.F.R. § 3.153 In general, the effective date of an award based on an original claim for DIC shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award for DIC for which an 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(d). However, when an application on any document indicating an intent to apply for survivor benefits is filed with either the Secretary of VA or the Commissioner of Social Security, it shall be deemed to be an application for benefits for both SSA and VA. 38 U.S.C. § 5105. Specifically, an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security, filed with SSA on for after January 1, 1957, will be considered a claim for VA death benefits, and to have been received by VA as of the date of receipt at SSA. 38 C.F.R. § 3.153. The Board notes that there are no statutes or regulations that define what constitutes a jointly prescribed form. However, the United States Court of Appeals for Veterans Claims (Court) has found that any claim sufficient to reflect an intent to apply for survivors’ benefits filed with SSA will suffice to establish the effective date for DIC. See Van Valkenburg v. Shinseki, 23 Vet. App. 113, 119 (2009). This is further supported by the VA Adjudication Manual M21-1 (hereinafter M21-1), which states that under 38 C.F.R. § 3.153, VA should consider an application for survivors’ benefits filed as the result of the death of a Veteran with SSA as a claim for VA survivors benefits. M21-1, Part IV.iii.3.A.3.a. Therefore, this case turns on whether an application for LSDP with SSA constitutes an application for survivors’ benefits. SSA statue and regulations do not provide a specific definition for “survivors’ benefits.” However, the section of the statute establishing LSDP benefits is entitled “Old Age and Survivors Insurance Benefit Payments.” 42 U.S.C. § 402 (2012). More specifically, the introduction section for the regulations for old age, disability, dependents’, and survivors’ insurance benefits enumerates the benefits provided for a worker’s survivors. The benefits provided for a worker’s survivor are “benefits for a worker’s widow, widower, divorced wife, child, and parent, and a lump-sum death payment.” 40 C.F.R. § 404.301 (2017). Generally, LSDP is a payment that may be made on the death of a fully or current insured person when they die, and may be paid of the widow or widower of the deceased. 40 C.F.R. § 404.390 (2017). Based on the language used in the regulations, LSDP is a benefit for a worker’s survivor, available on the death of a worker. As such, an application for LSDP reasonably satisfies the M21-1 explanation of “an application for survivors’ benefits filed as a result of the death of a Veteran.” The Board additionally notes that the Veteran’s application for LSDP includes the statement “I apply for all insurance benefits for while I am eligible under title II (Federal Old Age, Survivors, and Disability Insurance) of the Social Security Act, as presently amended, on the named deceased’s social security record.” As such, the application for LSDP benefits constitutes an application for all title II survivors benefits. At the time the appellant filed her application for LSDP she was not eligible for widow’s insurance benefits as she had not attained the age requirements. 42 U.S.C. § 402(e) (2012). Of note, there are no age requirements for VA death benefits. Under 42 U.S.C. § 402(o), the filing of an application for death benefits with VA satisfies the requirements of an application for benefits for child’s insurance benefits, widow’s insurance benefits, widower’s insurance benefits, and parent’s insurance benefits. The statue does not indicate that an application for death benefits with VA satisfies the requirements of an application for LSDP. However, the Court has found that nothing in the legislative history of 42 U.S.C. § 402(o) submitted to the Court suggests that it was meant to limit the type of benefits for which VA and SSA could have jointly prescribed applications in accordance with 38 U.S.C. § 5105. Kay v. Principi, 16 Vet. App. 529, 533 (2002). As such, the exclusion for LSDP benefits from 42 U.S.C. § 402(o) is not dispositive on the question of whether an application for LSDP is an application for survivors’ benefits. Based on the above, the Board finds the preponderance of evidence in support of finding that an application for LSDP benefits is an application for survivors’ benefits, as described in the M21-1. Therefore, the effective date of the grant of service connection for the cause of the Veteran’s death should be October 27, 2005, the date of the appellant’s application for LSDP benefits. See 38 U.S.C. § 5105; 38 C.F.R. § 3.153. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel