Citation Nr: 20021675 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-35 854 DATE: March 26, 2020 ORDER Entitlement to an effective date earlier than August 16, 1996 for a grant of nonservice-connected pension benefits is denied. FINDING OF FACT The Veteran’s claim for nonservice-connected pension was received on August 16, 1996 and no formal or informal claim was received prior to that time. CONCLUSION OF LAW The criteria for an effective date earlier than August 16, 1996 for a grant of non-service-connected pension benefits have not been met. 38 U.S.C. §§ 1502, 1521, 5110, 7105; 38 C.F.R. §§ 3.159, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1974 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2017 Decision Review Officer rating decision, from a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, after a March 2017 Board remand, the December 2017 rating decision granted the Veteran’s claim for nonservice-connected pension and assigned an effective date of August 16, 1996. Entitlement to an effective date earlier than August 16, 1996 for a grant of nonservice-connected pension benefits is denied. The Veteran’s VA Form 21-526EZ Application for Pension was received by VA on August 16, 1996. The Veteran maintains that he is entitled to an effective date prior to August 16, 1996 for nonservice-connection benefits, in light of findings by the Social Security Administration suggesting disability prior to that date. See 38 C.F.R. § 1502(a)(2); March 10, 2017 Rating Decision. Pension benefits are payable to a veteran of war who has the requisite service and who is permanently and totally disabled due to disabilities not the result of his willful misconduct. 38 U.S.C. §§ 1502, 1521; 38 C.F.R. § 3.342. Permanent and total disability will be held to exist where the person is unemployable as a result of disability reasonably certain to last throughout the remainder of the person’s life. Talley v. Derwinski, 2 Vet. App. 282, 285 (1992); 38 C.F.R. §§ 3.340(b), 4.15. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The effective date for pension claims received on or after October 1, 1984 is the date of receipt of the claim, unless, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran’s own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which a veteran became permanently and totally disabled. 38 C.F.R. § 3.400(b)(1)(ii)(A)-(B). A “claim” is 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 VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.151(a) provides that in general a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). It allows that a claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. However, a claim for pension is not necessarily a claim for compensation. In Stewart v. Brown, 10 Vet. App. 15 (1997), the United States Court of Appeals for Veterans Claims (Court) explained that the phrase “may be considered” in 38 C.F.R. § 3.151(a) is discretionary rather than mandatory. “Rather, the Secretary has to exercise his discretion under the regulation in accordance with the contents of the application and the evidence in support of it.” Id. at 9, citing Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word “may,” in the regulation, clearly indicates discretion). The Veteran’s VA Form 21-526EZ was received on August 16, 1996. The December 2017 rating decision assigned an effective date of August 16, 1996, corresponding to this date. Payment of pension appropriately commenced September 1, 1996, in accordance with 38 C.F.R. § 3.31. The file does not contain any document dated prior to August 16, 1996 indicating that the Veteran wished to claim entitlement to his nonservice-connected pension. Indeed, the Veteran does not contend that he filed a claim prior to August 16, 1996. Under these undisputed facts, there is no legal basis upon which to award pension earlier than August 16, 1996, with payment commencing on September 1, 1996. 38 C.F.R. § 3.31. The Board is sympathetic to the Veteran’s contentions that due to a disabling accident ten years prior to 1996, and the Social Security Agency’s accordant findings, his entitlement to a nonservice-connected pension should be effective from that date. To the extent that he argues that the VA should have notified him of a potential VA entitlement prior to 1996, VA’s General Counsel has addressed the question of the scope of any obligation imposed on the Secretary of VA under 38 U.S.C. § 7722, or any other legal authority, to inform individuals concerning benefits to which they may be entitled. VA’s General Counsel concluded that the statute requires VA to inform individuals of their potential entitlement to VA benefits when VA is aware or reasonably should be aware that such individuals are potentially entitled to VA benefits. VA O.G.C. Prec. Op. No. 17-95 (June 21, 1995) (published in 60 Fed. Reg. 43,188 (1995). In this case, there is no evidence that VA had knowledge that the Veteran met the requirements for pension eligibility until his August 1996 application was received; thus, it would not be reasonable to expect VA to contact the Veteran and inform him of his potential benefits. While VA makes every effort to advise veterans of their potential eligibility for benefits, the vast array of benefits makes it impossible for VA to inform every veteran or person of every possible potential benefit for which he might be entitled. Ultimately, it is the responsibility of the Veteran to familiarize himself with all potential benefits and other privileges which he may be entitled to, including VA pension benefits. See Hill v. Derwinski, 2 Vet. App. 451 (1991). (Continued on the next page)   In summary, under the undisputed facts in this case, there is no legal basis upon which to award an effective date earlier than August 16, 1996, for the award of nonservice-connected pension benefits; thus, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.