Citation Nr: 21064814
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 17-48 453
DATE: October 21, 2021

ORDER

Entitlement to an effective date for Dependency and Indemnity Compensation (DIC) earlier than September 20, 2013, is denied. 

INTRODUCTION

The Veteran served on active duty in the United States Air Force from May 1963 to May 1967 and January 1991 to April 1991 with service in Operation Desert Storm.  He died on May [REDACTED], 2009.  The Appellant is his surviving spouse.  

This matter comes before the Board of Veteran Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO).  

In the November 2016 decision, the RO granted service connection for the Veteran's cause of death and awarded the Appellant DIC effective September 20, 2013.  The Appellant disagrees with the assigned effective date and contends the award of DIC should be effective June 2009. 

FINDINGS OF FACT

1.  On September 20, 2013, the Appellant called the VA to file an informal claim for DIC.  She filed a formal application for benefits on October 17, 2013. 

2.  Prior to September 20, 2013, the VA was not in receipt of any communication from the Appellant that could be construed as a formal or informal claim for benefits.

CONCLUSION OF LAW

1. The criteria for an effective date earlier than September 20, 2013 for the award of DIC have not been met.   38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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.

Analysis

The Appellant contends the RO should have assigned an earlier effective date for the grant of DIC and requests an audit of the VA records for any evidence of her June 2009 claim for benefits.  In her March 2017 Notice of Disagreement the Appellant stated she forwarded the Veteran's original claim for benefits a few weeks after he died in May 2009.  According to the Appellant, she did not send the claim via certified mail or with a return receipt. 

The Board notes that prior to March 24, 2015, as in the instant case, the VA administrative claims process recognized formal and informal claims.  A formal claim is one that has been filed in the form prescribed by VA.  See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).  An informal claim was any communication or action indicating an intent to apply for one or more benefits under VA law.  See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a).  

An informal claim needed to be written and it had to identify the benefit being sought. See Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998). 

Following a thorough review of the Veteran's entire electronic claims file, the Board cannot find any evidence to indicate the VA received an informal or formal claim for benefits prior to September 20, 2013.  Had such claim been received by VA, there is a "presumption of regularity" that it would have been marked as received, and then entered into the record.  See Mindenhall v. Brown, 7 Vet. App. 271 (1994); Ashley v. Derwinksi, 2 Vet. App. 62, 64 (1992).  The Board finds no probative evidence to rebut the presumption of regularity.

As such, after considering the facts of this case, the Board finds that there is no legal basis to assign an effective date prior to September 20, 2013, for the award of DIC to the Appellant.  The Board is sympathetic to the Appellant's claim, but it is bound by the laws and regulations that apply to veterans claims and it has no discretion in this regard.  38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Although the Board is required to "render a decision which grants every benefit that can be supported in law," it regrets that there is no basis in law to grant the appeal being decided herein.  38 C.F.R. § 3.103(a).  As such, the Appellant's appeal must be denied as a matter of law, and the benefit of the doubt doctrine is therefore not for application.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nestander, Jessica S.

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.