Citation Nr: 20006664 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-35 168 DATE: January 27, 2020 ORDER Entitlement to an effective date of March 1, 2010, for the grant of dependency and indemnity compensation (DIC) is granted. FINDING OF FACT 1. The Veteran died on March 7, 2010; the appellant is the Veteran’s surviving spouse. 2. The appellant filed a claim for DIC on March 24, 2010, the same date that she filed a claim for burial benefits. 3. The RO failed to adjudicate her March 24, 2010, claim for DIC, and the claim remains pending. CONCLUSION OF LAW The criteria for an earlier effective date for DIC benefits have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.5, 3.102, 3.159, 3.160, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from October 1942 to October 1943. He died in March 2010, and the appellant is the Veteran’s widow. This appeal comes to the Board of Veterans’ Appeals (Board) from an August 2014 administrative decision by the Department of Veterans Affairs Philadelphia Regional Office and Insurance Center (VAROIC). That decision granted DIC effective December 10, 2013. The appellant testified at a Board hearing before the undersigned Veterans Law Judge in November 2019. During that hearing, the undersigned granted the appellant’s request to hold the record open for 30 days. Unless specifically provided otherwise as noted above regarding intent to file, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2019). Specific to claims for DIC, the effective date is the “first day of the month in which the veteran’s death occurred, if received within one year after the date of death; otherwise, date of receipt of the claim.” 38 C.F.R. § 3.400 (c)(2). A review of the appellant’s claim is informative. On March 24, 2010, the appellant filed separate applications for burial benefits (VA Form 21-530) and DIC (VA Form 21-534a). On April 16, 2010, the RO sent the appellant a letter informing her that “[w]e are working on your claim for Burial Allowance” and requested additional evidence, to include a death certificate. On July 1, 2010, the RO sent the appellant another letter that reiterated their previous request and informed the appellant that if the VAROIC received that evidence by March 15, 2012, they would continue to process the claim. On March 14, 2012, the appellant sent medical evidence dating from the last months of the Veteran’s life. However, those documents were not received by the VAROIC until March 20, 2012. On June 26, 2012, the VAROIC sent the appellant a duty to assist letter, this time to a new address, informing the appellant that they were working on her claim for burial benefits and again requested a death certificate. In an August 2012 rating decision, the RO granted service connection for cause of the Veteran’s death. In that decision, the RO noted receipt of a request to reopen a previous claim on March 20, 2012. In a notification letter dated September 2012, the RO explained that they received the appellant’s request for burial benefits on March 20, 2012. The letter also stated “if you wish to apply for death benefits and have not already done so, please complete and return the VA Form 21-534[.]” In December 2013, the appellant resubmitted her original claim for DIC, along with a new claim on a VA Form 21-534. An August 2014 administrative decision granted DIC effective December 10, 2013. In September 2014, the appellant submitted a letter requesting an earlier effective date for DIC, indicating that she had become extremely ill in 2010, had moved to a nursing home, and failed to notify VA of her change in address. Subsequently, an October 2014 deferred rating decision noted that the appellant’s original March 24, 2010, claim was noted as “cancelled” because it was determined at that time that the claim was only for a burial claim. The decision further noted that the VA Form 21-534a should have been treated as an informal claim for DIC benefits, yet the “issue was never addressed or mentioned during the entire development process.” The decision further noted that an effective date of March 1, 2010, the first of the month of the Veteran’s passing, was warranted. Despite that deferred rating decision, an October 2014 notification letter and May 2016 statement of the case continued to deny the appellant’s claim for an earlier effective date. During the Board hearing, the appellant testified that she did not receive any letters notifying her that her claim for DIC was submitted incorrectly. Based on the foregoing, the Board finds that the appellant’s original claim for DIC remained pending since October 24, 2010. As noted by the October 2014 deferred rating decision, the record demonstrates that the VAROIC cancelled the appellant’s claim and only processed a claim for burial benefits. Had the appellant notified the VAROIC of her change of address to a nursing facility, she would still not have received notice of a claim for DIC as each letter only addressed her claim for burial benefits. As the appellant filed a claim for DIC within one year of the Veteran’s death, an earlier effective date of March 1, 2010, is warranted. 38 C.F.R. § 3.400 (c)(2). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami 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.