Citation Nr: 19112366 Decision Date: 02/19/19 Archive Date: 02/19/19 DOCKET NO. 17-32 537 DATE: February 19, 2019 ORDER Entitlement to an effective date prior to July 27, 2015, for the grant of Dependency and Indemnity Compensation (DIC) benefits as the surviving spouse of the Veteran is denied. FINDINGS OF FACT 1. The Veteran died in March 2007. 2. In a final March 2007 decision, the agency of original jurisdiction (AOJ) denied the appellant’s claim for DIC benefits as the Veteran’s surviving spouse; the appellant did not appeal the decision or submit new and material evidence within the one-year period thereafter. 3. In a final August 2010 decision, the AOJ denied the appellant’s claim for DIC benefits as the Veteran’s surviving spouse; although the appellant submitted a Notice of Disagreement in September 2010, she did not submit a timely substantive appeal following issuance of the September 2013 Statement of the Case. 3. Following the September 2013 Statement of the Case, the appellant first filed a new claim of entitlement to DIC benefits on July 27, 2015; no earlier record constitutes a formal or informal claim or intent to reopen a claim for this benefit. CONCLUSION OF LAW The criteria for an effective date earlier than July 27, 2015 (payable from August 1, 2015), for the grant of DIC benefits have not been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.31, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1997 to March 2007. He died in March 2007 while on active duty. The appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals on appeal from a December 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The December 2016 RO decision granted the Appellant entitlement to DIC benefits as the Veteran’s surviving spouse, effective from July 27, 2015, with a payment start date of August 1, 2015. Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). DIC benefits are payable to the surviving spouse of a veteran if the veteran died from service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5(a). Unless specifically provided otherwise, 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 application therefor. 38 U.S.C. § 5110(a). The effective date for an award of benefits for service-connected death after separation from service is the first day of the month in which the veteran’s death occurred, if the claim is received within one year after the date of death; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 C.F.R. §§ 3.400(q)(2), 3.400(r). The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (holding that 38 U.S.C. § 5110(a) “is clear on its face with respect to granting an effective date for an award of VA periodic monetary benefits no earlier than the date that the claim for reopening was filed”). The United States Court of Appeals for Veterans Claims (Court) explained that the statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits based on a reopened claim. Id. (holding that the term “new claim,” as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date earlier than July 27, 2015, for the grant of DIC benefits is not warranted. While the appellant has generally alleged that a prior decision by the AOJ was clearly and unmistakably erroneous (CUE), she has not specifically stipulated the nature of that error. If an appellant wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Here, the appellant has contended that the effective date for the grant of DIC benefits should be March 2, 2007, the day the Veteran was killed during active duty service. The Veteran died in March 2007 while deployed to Iraq. The appellant’s initial claim of entitlement to DIC benefits was received by VA on March 20, 2007. In correspondence dated on March 23, 2007, the AOJ informed the appellant that it had granted entitlement to DIC benefits effective March 1, 2007, and that it would pay the appellant as custodian of the dependent child of the deceased Veteran. However, the correspondence further explained that the AOJ could not pay the appellant benefits as the surviving spouse of the deceased Veteran because she indicated on her claim form that she and the Veteran did not live together continuously from the date of their marriage until the date of the Veteran's death. As such, the AOJ requested that the appellant provide additional details concerning her marriage to the Veteran, and notified her that it could not render a decision about her entitlement to benefits as a surviving spouse until her response was received. However, the appellant did not appeal the March 2007 decision or submit new and material evidence within the one-year period thereafter. Rather, the appellant again filed a claim of entitlement to DIC benefits on April 15, 2009. In an August 2010 Administrative Decision, the AOJ determined that the appellant should not be granted benefits as the surviving spouse of the veteran, as she did not meet the requirements of continuous cohabitation. In response, the appellant filed a Notice of Disagreement in September 2010. However, although the AOJ issued a Statement of the Case in September 2013, the appellant never filed a timely substantive appeal. Generally, a decision of the AOJ that is not timely appealed becomes final and binding in the absence of CUE. A claim for benefits based on CUE in a prior final decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final AOJ decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). In this case, as mentioned above, the appellant and her representative have not specifically alleged a valid claim of CUE in the March 2007 or August 2010 decisions. Based on the foregoing, the March 2007 and August 2010 decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. Following issuance of the September 2013 Statement of the Case, the appellant did not file another claim of entitlement to DIC benefits as the surviving spouse until July 27, 2015, on a VA Form 21-534, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable). In a December 2016 Administrative Decision, the AOJ determined that the requirement of continuous cohabitation between the Veteran and appellant had been met for the purpose of VA death benefits. In correspondence also dated in December 2016, the AOJ explained to the appellant that it granted entitlement to DIC benefits effective July 27, 2015, the date of her current claim. Regarding the date of claim, the Board finds that the record does not contain any earlier communication following the September 2013 Statement of the Case indicating an intent to file a new DIC claim as the Veteran’s surviving spouse. In fact, there is no correspondence in the claims file from either the appellant or her representative between the September 2013 Statement of the Case and the July 27, 2015, claim. The Board acknowledges a January 2017 correspondence in the record from the Veteran’s surviving father indicating that he and the Veteran’s mother had been the legal custodians of the Veteran’s son since the Veteran’s deployment to Iraq and his subsequent death in March 2007, and challenging the appellant’s characterization of her relationship with the Veteran at the time of his deployment. However, as these matters are not directly relevant to the narrow question presently before the Board, i.e., whether an effective date prior to July 27, 2015, for the grant of entitlement to DIC benefits as the Veteran’s surviving spouse is warranted, the Board will not address them further. Based on the foregoing, the Board concludes that, following the September 2013 Statement of the Case, a formal or informal claim or intent to file a claim for DIC benefits as the surviving spouse of the Veteran was not received prior to the claim submitted on July 27, 2015 (payable from August 1, 2015), the effective date currently assigned. The Board emphasizes that the March 2007 and August 2010 decisions requested that the appellant submit additional evidence in support of her claim of entitlement to DIC benefits as the Veteran’s surviving spouse, and that a claimant has the responsibility to present and support a claim for benefits. As the weight of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel