Citation Nr: 20007777 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 19-13 737 DATE: January 29, 2020 ORDER An effective date earlier than May 1, 2000, for the payment of Dependency and Indemnity Compensation (DIC) based on a grant of service connection for the cause of the Veteran’s death is dismissed. FINDING OF FACT 1. A January 2008 rating decision granted the appellant’s claim of entitlement to service connection for the cause of the Veteran’s death. Notice of the determination, issued in July 2008, stated the “payment” start date for her DIC benefits was May 1, 2000, the first day of the month following her effective date (for the award of service connection for the cause of the Veteran’s death). The appellant disagreed with the effective date assigned for the award of DIC and perfected an appeal. 2. An unappealed June 2011 Board decision denied an effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death. 3. After the June 2011 Board decision, the first communication from the appellant regarding an earlier effective is dated in April 2018. CONCLUSION OF LAW An effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death, is legally precluded. 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a) (2011); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1964 to July 1967. The Veteran died in September 1983. The appellant is the Veteran’s widow. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2018 decision which denied an effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death. The Board notes that many of the documents described below are not currently associated with the claims file but are described in detail in a June 2011 Board decision. While the Board has not made any attempts to obtain the missing documents, given the nature of the claim, such is found to be harmless error. An effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death is denied. By way of history, in a March 1989 rating decision, the Regional Office (RO) in St. Louis, Missouri, denied service connection for the cause of the Veteran’s death. The appellant received notice of the rating decision in March 1989. There is no indication the appellant filed a notice of disagreement within one year of the rating decision. A marriage certificate was associated with the claims file following the rating decision, but a marriage certificate had already been associated with the claims file at the time of the March 1989 rating decision, and there is no indication the appellant intended to appeal the decision. In April 2000, the appellant filed an application to reopen the claim for entitlement to service connection for the cause of the Veteran’s death. The appellant’s claim to reopen was received on April 17, 2000. In a rating decision dated in January 2008, the Appeals Management Center (AMC) granted service connection for the cause of the Veteran’s death based on new and material evidence, namely, a VA medical opinion dated in January 2008, that found that the Veteran’s melanoma was secondary to sunburn that occurred while on active duty. A July 2008 VA letter advised the appellant that the effective date for payment of DIC benefits based on the award of service connection for the cause of the Veteran’s death was May 1, 2000, the first date of the month following receipt of the appellant’s application to reopen the claim for service connection for the cause of the Veteran’s death. The Veteran disagreed with the January 2008 rating decision and perfected an appeal. Specifically, the appellant contended that an effective date prior to May 1, 2000, for the payment of DIC benefits, based on the award of service connection for the cause of the Veteran’s death, was warranted because she contacted the St. Joseph, Missouri, VA by phone in late November 1983 to inquire about benefits. In a March 2010 statement, the appellant reported that when she called the VA in November 1983, she asked if she could file a claim for benefits for herself and her children. She stated that that she explained that the Veteran’s oncologist said that he was fairly sure the Veteran’s illness and death were directly due to the Veteran’s involvement in Vietnam through his military service. She noted that she gave the VA representative the Veteran’s social security number, dates of military service, information from his DD Form 214, and this doctor’s name and information. The representative told her he would look into her information and get back to her if he had any questions or advice. He said that if she had a valid claim, she would need to come to the office in St. Joseph and fill out more forms. She stated that she assumed that when the representative did not call her back, that she did not have a valid claim. She explained that this is why she had nothing in writing asking for any benefits or information concerning benefits before 1988. Although the appellant reported that she contacted the VA in 1983, there was no evidence that the appellant contacted the VA at that time. Significantly, in her October 1988 claim, the appellant stated that she was just now finding out that there is a possibility that she can get some compensation from the VA. When the appellant filed her claim in April 2000, she stated that she tried to apply for VA benefits at the time of her husband’s death, but was told that his death was not considered service-connected and it would be a waste of time to apply. She stated that no paperwork was sent to the VA at that time. In a June 2011 decision, the Board denied an effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death. It was noted that the appellant filed a claim for burial benefits at the time of the Veteran’s death in November 1983. She was granted an allowance for funeral and burial expenses in December 1983 and reimbursement of headstone expenses in January 1984. The appellant’s application did not indicate that she wished to file a claim for entitlement to service connection for the cause of the Veteran’s death. Moreover, even if the appellant had filed a claim for service connection for the cause of the Veteran’s death prior to March 1989, the March 1989 rating decision was final. The effective date for the grant of service connection for the cause of death, based on a claim to reopen, can be no earlier than the date of receipt of the claim to reopen. In the April 2000 claim, the appellant also reported that when she received a letter from the Agent Orange Administration in July 1991, she was told that it would be forwarded to the VA in Washington, DC, about possible VA benefits. However, the Board noted that there was no evidence in the claims file indicating the appellant filed a claim for benefits for the cause of the Veteran’s death in 1991. As there was no evidence that can be construed as a pending claim, formal or informal, before April 17, 2000, the Board found that there was no factual or legal basis to assign an effective date for the grant of service connection for the cause of the Veteran’s death before that date. Thus, the Board found that the effective date for the award of service connection for the cause of the Veteran’s death was the date of receipt of the appellant’s claim, April 17, 2000 and the provisions of 38 C.F.R. § 3.31 precluded payment of DIC benefits earlier than the first day of the month following such effective date, namely May 1, 2000. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of clear and unmistakable error (CUE) in a prior rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). A review of the claims file is negative for any correspondence dated between the June 2011 Board decision and the April 2018 claim for an earlier effective date. While the appellant did submit copies of December 1983 and July 1991 correspondence in connection with the current claim and has purported that such were submitted to VA at such times as claims for service connection for the cause of the Veteran’s death, the Board notes such documents do not appear to have been submitted to VA at all. Rather, the December 1983 letter appears to have been submitted to the Missouri Veterans Commission and the July 1991 letter appears to have been submitted to the Appeals Management Center (which, notably, did not exist in July 1991 as it was created in July 2003). Significantly, neither letter contains a date stamp. (CONTINUED ON NEXT PAGE) More importantly, the appellant did not appeal the June 2011 Board decision and the appellant has not argued that there was CUE in a prior decision. Because there is no freestanding claim for an earlier effective date, the appellant’s claim for an effective date earlier than May 1, 2000, for the payment of DIC based on a grant of service connection for the cause of the Veteran’s death, must be dismissed as a matter of law. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.