Citation Nr: 20003446 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 15-09 692 DATE: January 15, 2020 ORDER Entitlement to an effective date earlier than March 8, 2013, for an award of Dependency and Indemnity Compensation (DIC) based on status as surviving spouse of the Veteran is denied. FINDING OF FACT There were no pending claims or appeals for entitlement to DIC based on the appellant being the surviving spouse of the Veteran between the notice of the December 2006 administrative decision and the March 8, 2013, informal claim for that benefit. CONCLUSIONS OF LAW 1. The December 2006 administrative decision finding the appellant to not be entitled to DIC benefits as the Veteran’s surviving spouse is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.303, 20.1103. 2. The legal requirements for an effective date prior to March 8, 2013, for the grant of DIC benefits based on the appellant being the surviving spouse of the Veteran are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(r). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1992 to November 1998. The Veteran died in January 2006 and the appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 VA administrative decision, which found that the appellant was the Veteran’s surviving spouse for VA purposes and granted DIC benefits, effective March 8, 2013. As an initial matter, the Board notes that in a March 2019 decision, the Board denied entitlement to an effective date earlier than March 8, 2013, for an award of DIC based on status as surviving spouse of the Veteran. In June 2019, VA received a motion for reconsideration of the March 2019 Board decision asserting that the appellant’s former representative did not receive notification that the appellant’s claim had been placed on the Board’s docket. On September 5, 2019, the Board vacated the March 2019 Board decision. Thereafter, the appellant obtained new representation and the appellant’s representative contacted VA concerning the Board’s September 2019 vacatur and timeframe for submitting additional evidence. See October 2019 VA 119 Report of Contact. The appellant’s representative was notified that the appeal would be suspended to submit additional information until December 4, 2019. Entitlement to an effective date earlier than March 8, 2013, for an award of DIC based on status as surviving spouse of the Veteran In specific circumstances, DIC benefits may be paid to the surviving spouse of a Veteran. See 38 U.S.C. §§ 1310, 1541. The term “surviving spouse,” except as provided in 38 C.F.R. § 3.52, means a person whose marriage to the Veteran meets the requirements of 38 C.F.R. § 3.1(j) and who was the spouse of the Veteran at the time of the Veteran’s death. 38 C.F.R. § 3.50(b). Under 38 C.F.R. § 3.52, an attempted marriage found to be invalid due to legal impediment will be deemed valid if (a) the marriage occurred 1 year or more before the Veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)); and (b) the claimant entered into the marriage without knowledge of the impediment; and (c) the claimant cohabitated with the Veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53; and (d) no claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the Veteran’s death. See 38 U.S.C. § 103(a). Generally, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Additionally, in general, the effective date for an award based on an original claim or a claim reopened after a final adjudication is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. By way of background, the Veteran and the appellant were married in November 2001 and divorced in January 2005. The Veteran died in January 2006 and his death certificate listed his marital status at the time of death as divorced. In March 2006, the appellant submitted a claim for DIC benefits where she specifically stated that she was requesting DIC benefits for herself, as a surviving spouse, and for the Veteran’s children. A December 2006 administrative decision denied the appellant’s claim for DIC benefits and she was notified of this decision and her appellate rights in February 2007. In May 2007, VA received a DIC claim signed by the appellant that specifically noted she was requesting DIC benefits for the Veteran’s two children. Thereafter, in June 2007, VA notified the appellant that it was working on her DIC application for the Veteran’s dependent children and listed the appellant as custodian of the children. In August 2008, VA notified the appellant that her claim for DIC benefits, received in May 2007, on behalf of the dependent children was granted, effective January 1, 2006. On March 8, 2013, VA received an informal claim for DIC benefits from the appellant as the Veteran’s surviving spouse and a formal claim for DIC benefits in May 2013. A January 2014 administrative decision found that the criteria for a “deemed valid” marriage between the appellant and the Veteran were met and the appellant was eligible for DIC benefits based on being the surviving spouse of the Veteran, effective from March 8, 2013. The Veteran appealed the January 2014 administrative decision contending that she was entitled to an earlier effective date for the award of DIC benefits. A subsequent September 2018 administrative decision found that the January 2014 administrative decision was clearly and unmistakably erroneous because it was based on the same evidence of record at the time of the December 2006 administrative decision. Specifically, the September 2018 administrative decision noted that the December 2006 decision was final, there was no indication that it was the product of clear and unmistakable error, and the claim could only be reopened with the submission of new and material evidence. After being notified by letter of a proposal to terminate her DIC award if she did not provide new and material evidence to establish a common law marriage with the Veteran at the time of his death, the appellant submitted statements from her daughter and a friend of hers in January 2019 attesting to witnessing the Veteran and the appellant as holding them out to the public as husband and wife after their divorce. A February 2019 administrative decision found this evidence to be new and material and determined that the appellant was entitled to DIC benefits as the Veteran’s spouse based on a “deemed valid” common law marriage with the Veteran after their divorce. As such, the appellant’s award of DIC benefits, effective from March 8, 2013, was not terminated. At issue is whether the appellant is entitled to an earlier effective date for her award of DIC benefits. The appellant contends that she is entitled to an earlier effective date of January 1, 2006, for her award of DIC benefits as the surviving spouse of the Veteran because the May 2007 DIC application should be construed as a notice of disagreement (NOD) with the December 2006 administrative decision or, alternatively, as an informal claim articulating an intent to reopen her claim for DIC benefits. See November 2019 Third Party Correspondence. Specifically, she asserts that in May 2007 she went to her local VA representative intending to appeal the December 2006 administrative decision and that the DIC application filled out by the representative was submitted to VA with mistakes. Id. She also asserts that because she noted on the May 2007 DIC application that she was the common law spouse of the Veteran and pointed out that she had filed a claim for DIC benefits in the past, this indicated either a disagreement with the December 2006 administrative decision or an informal claim for DIC benefits as the surviving spouse of the Veteran. See id. While the Board is sympathetic to the appellant’s assertions, the Board finds that based on the totality of the evidence in the record, an earlier effective date cannot be assigned. In this regard, there is no document that may be liberally construed as a NOD within one year of the notification of the December 2006 administrative decision denying the appellant DIC benefits as a surviving spouse of the Veteran and no document may be construed as a petition to reopen the denial of eligibility for these benefits prior to the appellant’s informal claim for DIC benefits on March 8, 2013. The Board notes that effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57, 686. Thus, turning to consideration of the former regulations, VA did not require NODs to be filed on standard forms provided by the Secretary. Rather, a NOD need only express dissatisfaction or disagreement with an adverse decision and a desire to contest the result. 38 C.F.R. § 20.201(p) (2008). No special wording is required. See Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (“VA has always been, and will continue to be, liberal in determining what constitutes a [NOD].”). Additionally, under the former regulations, such provided that any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received under the former regulations, the adjudicator 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). Here, after a careful review of the record, the Board finds that no document may be liberally construed as a NOD with the December 2006 administrative decision and no document may be construed as a petition to reopen the denial of eligibility for these benefits for the period between the notice of the final December 2006 administrative decision and the appellant’s March 8, 2013 informal claim. This is because no communication during this time frame articulates a disagreement and desire to contest the December 2006 administration decision regarding the appellant as the surviving spouse of the Veteran for an award of DIC benefits nor an intent to reopen the claim for such benefits. Although the appellant argues that the May 2007 DIC application reflects either a NOD or a claim to reopen, the Board finds that the May 2007 application cannot reasonably or liberally be interpreted as such because the May 2007 DIC application explicitly indicates that the claim is on behalf of the Veteran’s dependent children. In this regard, on the application form, the Veteran’s son is listed as the claimant and the marital history section of the form, with instructions to skip the section if the claimant is not the surviving spouse, is not filled out. While the appellant signed the May 2007 DIC application, she did so as the custodian of the children for whom the application was for. Significantly, the appellant specifically stated on the application that she was requesting DIC benefits for the dependent children (in contrast to the prior March 2006 application where she specifically requested benefits both for herself and for her children). The mere fact that the appellant listed she was the Veteran’s common law spouse in the section of the application form requiring her to disclose her relationship to the Veteran does not indicate or reasonably suggest that she was appealing the December 2006 administrative decision regarding the award of DIC benefits as the surviving spouse or reopening such a claim especially in light of the appellant’s statement on the application that she was requesting DIC benefits for the children. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (noting that VA “is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed,” and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995), for the proposition that VA is not required to do a “prognostication” or “conjure up” issues that were not raised by the appellant, but to review issues reasonably raised by the substantive appeal). Moreover, in June 2007, VA notified the appellant that it was working on her DIC application for the Veteran’s dependent children, which also effectively notified the appellant that VA had construed the May 2007 DIC claim as a claim only for the dependent children. As such, at no point from her notification of the December 2006 administrative decision until the March 2013 informal claim did the appellant express a desire to contest the denial of DIC benefits based on status as surviving spouse and instead only submitted information to VA in furtherance of the DIC claim for the dependent children. Accordingly, the December 2006 administrative decision became final because the appellant did not perfect an appeal within a year of the decision and no additional pertinent evidence was received within the applicable time period. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 20.303, 20.1103. Due to the finality of the December 2006 decision, the earliest effective date statutorily available to the appellant is the date of the appellant’s most recent claim and the evidence demonstrated that between notice of the final December 2006 administrative decision and the March 8, 2013 informal claim, the appellant did not submit any claim, either formal or informal, to reopen her claim for entitlement to DIC benefits based on her status as the Veteran’s surviving spouse. Therefore, entitlement to an effective date earlier than March 8, 2013, for the grant of DIC benefits based on the appellant’s status as the Veteran’s surviving spouse is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.