Citation Nr: 20032274 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 19-01 026 DATE: May 7, 2020 ORDER Entitlement to an effective date prior to August 29, 2015 for the grant of Dependency and Indemnity Compensation (DIC) benefits for aid and attendance is denied. FINDING OF FACT Prior to August 29, 2015, there is no evidence of an unadjudicated claim concerning entitlement to DIC for aid and attendance benefits. CONCLUSION OF LAW The criteria for an effective date earlier than August 29, 2015 for the grant of DIC aid and attendance benefits have not been met. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. §§ 3.55, 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was killed in action in November 1944. The Appellant is his surviving spouse. Entitlement to an effective date prior to August 29, 2015 for DIC benefits The Appellant contends that her DIC benefits warrant an effective date prior to August 29, 2015. Specifically, the Appellant argues that her DIC benefits should be retroactive to the date of her original claim in 1992, due to a 1998 liberalization of legislation concerning entitlement to benefits for some claimants. The Board finds that, unfortunately, the Appellant is not entitled to an effective date for DIC benefits prior to August 29, 2015. Historically, the appellant filed a claim for DIC benefits for the cause of the Veteran’s death in September 1992, which was denied in a January 1993 decision that found that the Appellant had been remarried following the death of the Veteran. VA regulations at the time prohibited benefits to a surviving spouse that remarries. The Appellant was properly notified but did not submit a Notice of Disagreement (NOD) with that decision and did not express disagreement with the decision in any other way, and no new evidence relating to the claim was submitted within one year of the rating decision. As such, that decision became final. 38 C.F.R. § 3.160(d). In August 2016, the Appellant filed a claim for benefits based on a liberalization in law permitting remarried spouses to collect benefits if the subsequent marriage has been terminated by death. 38 U.S.C. § 1311(e); 38 C.F.R. §§ 3.55(a)(2)(i), 3.215. The RO granted entitlement to aid and attendance with an effective date of August 29, 2016, the date the claim was received. The Appellant submitted a NOD arguing for an earlier effective date. In a June 2017 rating decision, the RO granted an earlier effective date of August 29, 2015, one year prior to the date the claim was received. The Appellant appealed, arguing that an earlier effective date is warranted, because she was not notified of the change in law resulting in her eligibility in 1998. The law regarding effective dates states that, 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, dependency and indemnity compensation, 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). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). The regulations under 38 U.S.C. § 1311(e); 38 C.F.R. §§ 3.55(a)(2)(i) do not specifically provide for retroactive application of benefits. Further, the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the award of compensation is due to a liberalizing change in the law or an administrative issue, the effective date of the award shall be fixed in accordance with the facts, but shall not be earlier than the date of the change in the law. In no event shall the increase be retroactive for more than one year from the date of application for the award or the date of administrative determination, whichever is earlier. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the Veteran met all the criteria of the liberalizing law or issue at that time. 38 C.F.R. § 3.114(a)(3). VA is under no legal obligation to notify every potential claimant individually of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194, 197 (1993). An Appellant is charged with knowledge of the laws and regulations of VA, and, therefore, a claim of lack of knowledge does not assist him or her in obtaining the benefit sought. Morris v. Derwinski, 1 Vet. App. 260, 265 (1991). Unfortunately, there is no legal basis to grant an effective date prior to August 29, 2015. The original 1992 rating decision is final, and the Appellant’s claim to reopen was received August 29, 2016. There is no indication that new and material evidence or any claim was filed prior to August 29, 2016. In this case, the RO granted an effective date of August 29, 2015 based on the liberalized law under 3.114(a)(3). As such, the Board finds that entitlement to an effective date for aid and attendance benefits prior to August 29, 2015 is not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lee 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.