Citation Nr: 21069416 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-29 184 DATE: November 18, 2021 ORDER An effective date prior to May 24, 2016, for the award of Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The Veteran died on December [REDACTED], 1988. 2. An August 2013 rating decision that denied service connection for cause of the Veteran's death is final. 3. VA received the appellant's request to reopen the previously denied claim of entitlement to DIC benefits on May 24, 2017; there is no earlier unadjudicated claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied the appellant's original DIC claim is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for an effective date prior to May 24, 2016, for the award of DIC benefits have not been met. 38 U.S.C. §§ 5107, 5110(d); 38 C.F.R. §§ 3.5, 3.152, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to March 1970. He died in December 1988. The appellant is the Veteran's surviving spouse. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date prior to May 24, 2016, for the award of DIC based on service connection for the cause of the Veteran's death. The appellant contends that an effective date of 2013 should be assigned as the appellant submitted an original claim for benefits at that time for DIC benefits. Specifically, the appellant argues that she submitted claim paperwork to her representative at that time and patiently waited as advised by the representative. See NOD (January 2018). She further argues that it is not her fault that the paperwork was not submitted to the correct individual as she thought the representative was a VA employee. Id; Form 9 (April 2018). Her former representative also asserted that her paperwork was not uploaded despite her numerous inquiries and she was then told to resubmit her claim. See VA 646 Statement of Accredited Representative in Appealed Case (July 2018). The Board concludes that an effective date prior to May 24, 2016, for the award of DIC is not warranted as the August 2013 rating decision became final, VA received the claim to reopen on May 24, 2016, and there is no intervening unadjudicated DIC claim. 38 U.S.C. §§ 5107, 5110(d), 7105(c); 38 C.F.R. §§ 3.5, 3.152, 3.400, 20.1103. Effective dates for the award of VA benefits are generally governed by 38 U.S.C. § 5110, which 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, DIC, 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). Further, the effective date of an award of death compensation or DIC for which the application is received within one year from the date of death shall be the first day of the month in which the death occurred; otherwise, the date of receipt of the claim. 38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 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 on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran died on December [REDACTED], 1988. The death certificate lists an immediate cause of death as cardio-pulmonary arrest due to lung cancer. At the time of death, the Veteran was service-connected for the residuals of right third toe fracture. See Rating Decision (May 1988). In July 2013, the appellant submitted a claim for DIC, which was denied, because the appellant did not submit a complete marital history, required to determine her eligibility for benefits. VA notified the appellant of that decision in an August 2013 letter and how to appeal, including the date by which she would have to provide evidence to preserve the effective date. See Notification Letter (August 2013). VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the August 2013 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In May 2017, VA received a formal claim along with a statement to reopen the previously denied claim of entitlement to DIC benefits. Indeed, the Board notes that the record shows that VA received no correspondence from the appellant from the date of VA's notice letter of the August 2013 decision and its receipt of the May 2017 DIC claim with supporting documentation. Based on the evidence received since the prior final disallowance, a July 2017 rating decision granted service connection for cause of death due to lung cancer effective from May 24, 2016 (date one year prior to the receipt of the claim to reopen). Although the appellant filed an initial claim in July 2013, the August 2013 rating decision is considered final as VA did not receive a notice of disagreement and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of that decision. As such, the August 2013 rating decision is not subject to collateral attack in the absence of an allegation of clear and unmistakable error (CUE), which must be specifically pled. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Additionally, the appellant does not assert, and there is no evidence to show, that she filed a formal or informal claim for service connection for the cause of the Veteran's death with VA at any time after August 2013 and prior to May 24, 2017. However, the appellant argues that, because she submitted paperwork to her representative at the time of the 2013 decision and she assumed he was a VA employee, her appeal remained active or pending or otherwise should be granted from at least 2013. See NOD (January 2018). The Board has considered the appellant's argument. However, the appellant's report that she believed a veterans service officer was a VA employee is not born out by the record given that she provided a copy of that representative's business card as evidence and it clearly reflects that he was a National Service Officer with the Military Order of the Purple Heart (not Department of Veterans Affairs). See Correspondence (April 2018). Further, even if he were a VA employee, it is well-established that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded. See Shields v. Brown, 8 Vet. App. 346, 351 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994). A letter, received by VA in July 2018, from a National Service Officer with the Military Order of the Purple Heart (MOPH), argues that the originating agency "erred in handling of evidence and did not have a complete record of documents available to when adjudicating the 2013 Claim for DIC." It further argues that VA had constructive possession of the requisite marriage documents at the time of the 2013 adjudication. See VA Form 646 (July 2018) (MOPH asserts that, after the August 2013 denial by the RO, the appellant submitted "Marital History as requested" that the system does not show and that the appellant inquired with the VA periodically). However, the Board observes that MOPH provides no documentation or reference to the claims file to support these statements/arguments. Rather, the Board's review of the claims file discloses no indication in the record that these documents had been actually submitted to VA prior to VA's receipt of the appellant's May 2017 claim. Notably, the appellant herself stated that she communicated with her former representative, and not VA, which contradicts MOPH assertion. See Form 9 (April 2018). VA received the appellant's request to reopen the DIC claim on May 24, 2017. The RO granted the benefit sought and assigned an effective date one year prior to the date of receipt of the claim to reopen following a prior final disallowance. Given the above, the Board finds that the originating agency correctly found that the effective date for the DIC award is May 24, 2016, which is 1 year prior to the date of receipt of claim, and there is no basis to award an earlier effective date than assigned under the relevant law. While the Board is sympathetic to the appellant's circumstances, ultimately, the Board is bound by the applicable legal authority and finds no basis therein to assign an effective date earlier than May 24, 2016. The Board is without authority to grant benefits out of equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Accordingly, the claim is denied. The benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.