Citation Nr: 21003638 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 15-41 115A DATE: January 22, 2021 ORDER Entitlement to an effective date of June 1, 2008, but no earlier, for the award of service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. The Veteran died on June [REDACTED], 2008, and VA received the appellant’s initial claim for service connection for the cause of the Veteran’s death on February 9, 2009. 2. The appellant’s initial claim for service connection for the cause of the Veteran’s death was denied in a decision issued on September 16, 2009, and on August 24, 2010 the appellant filed a notice of disagreement with that decision. CONCLUSION OF LAW The criteria for an effective date of June 1, 2008, but no earlier, for the award of service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1964 to January 1966. The Veteran died in June 2008, and the appellant is the Veteran’s surviving spouse. 38 U.S.C. § 101(3). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2014, the RO granted service connection for the cause of the Veteran’s death, effective February 3, 2011. The appellant appealed the assigned effective date to the Board. In September 2017, the Board denied entitlement to an earlier effective date. In April 2018, the Board denied the appellant’s request for reconsideration of its decision. 38 C.F.R. §§ 20.1001, 20.1002. The appellant appealed the September 2017 denial to the United States Court of Appeals for Veterans Claims, and a December 2019 memorandum decision of the Court vacated and remanded the denial. In July 2020 correspondence, the appellant and her representative were notified that her appeal had been returned to the Board and that she had 90 days to submit additional evidence or argument in support of her appeal. The 90-day period having closed, the Board will proceed with the adjudication of the claim. Clark v. O’Rourke, 30 Vet. App. 92, 97–99 (2018). In November 2020 correspondence, the appellant was notified that her appeal was awaiting a hearing before a Veterans Law Judge (VLJ). In December 2020 correspondence, the appellant stated that she wished to withdraw her pending request for a hearing. 38 C.F.R. § 20.603(e). 1. Earlier effective date for service connection for cause of death. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). With respect to claims for death benefits, the effective date of an award of death compensation, dependency and indemnity compensation (DIC), or death pension will be the first day of the month in which the death occurred if the claim is received within one year of the date of death. 38 U.S.C. § 5110(d) (2012); 38 C.F.R. § 3.400(c) (2019). Otherwise, the effective date will be the date the claim was received. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(c) (2019). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. As the currently assigned effective date is prior to the amendment’s effective date of the March 24, 2015, the Board will only discuss the laws and regulations in effect prior to March 24, 2015. Under the law prior to the amendment, a claim was defined as 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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b). In this case, service connection for the cause of the Veteran’s death was granted in a December 2014 rating decision. The rating decision stated that the award was based on a clear and unmistakable error which was made in a prior November 2013 rating decision, as that prior decision had not properly considered a January 2011 private opinion linking the Veteran’s cause of death to service. On that basis an effective date of February 3, 2011 was assigned, the date from which benefits would have been payable if the December 2014 decision had been made on the date of the reversed March 2013 decision. 38 C.F.R. § 3.400(k). Prior to February 3, 2011, the appellant had filed her initial claim for DIC benefits, which included a claim for service connection for the cause of the Veteran’s death, on February 9, 2009. 38 C.F.R. § 3.152. In a decision issued on September 16, 2009, the RO denied entitlement so DIC benefits, stating in pertinent part that there was no evidence showing that the Veteran’s cause of death was related to his active service. The September 16, 2009 decision further informed the appellant of her appellate rights and provided the necessary forms to initiate an appeal. Following that decision, no correspondence was received from the appellant by the RO until August 24, 2010. On that date the RO received the following: 1) a statement from the appellant dated August 19, 2010 requesting reconsideration of the September 16, 2009 denial; 2) a Wells Fargo bank statement; and, 3) a copy of the September 16, 2009 decision with the words “Agent Orange” written on it. The Board notes that documents one and three from the above list reflect two date stamps from the Philadelphia RO, one stamp stating the documents were received on August 24, 2010, and one stating the documents were received August 24, 2011. In reviewing the documents, the Board notes that the statement requesting reconsideration references enclosures, one of which is the Wells Fargo statement mentioned above. This Wells Fargo statement, in turn, has only one date stamp from the Philadelphia RO, which notes that it was received on August 24, 2010. As it is not possible for the August 19, 2010 statement to have been received a full year later than a document submitted along with it, the Board finds that these documents were received on August 24, 2010, and that the August 24, 2011 date stamp is erroneous. In reviewing the August 24, 2010 statement, it otherwise meets the criteria for a valid notice of disagreement with the September 16, 2009 denial, and was received within the one-year appellate period following that decision. 38 C.F.R. §§ 20.201, 20.302, 20.305 (2010). As a valid and timely notice of disagreement was received as to the September 2009 denial, that decision did not become final. 38 C.F.R. § 20.1103. As the appellant’s claim for DIC benefits was not previously and finally denied, the appropriate date of claim in this case is February 9, 2009, the date her formal claim for DIC benefits was received. In turn, as the claim was received within one year of the Veteran’s death on June [REDACTED], 2008, the appropriate effective date for the award of service connection for the cause of the Veteran’s death is June 1, 2008, the first day of the month of the Veteran’s death. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c). As the first day of the month of the Veteran’s death is the earliest allowable effective date, an effective date prior to June 1, 2008 is not warranted. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c). Based on the foregoing, an effective date of June 1, 2008, but no earlier, for the award of service connection for the cause of the Veteran’s death is granted. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.