Citation Nr: 21070748 Decision Date: 11/25/21 Archive Date: 11/25/21 DOCKET NO. 16-32 637 DATE: November 25, 2021 ORDER An effective date of April 1, 2013, but no earlier, for the award of Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is granted. FINDINGS OF FACT 1. The Veteran died in April 2013. 2. A July 2014 rating decision awarded the appellant entitlement to DIC effective July 15, 2014, the date of receipt of the claim. 3. The record shows that the appellant was awarded a lump sum death payment from the Social Security Administration (SSA) in a June 2013 decision (i.e. within one year of the Veteran's death); the appellant's request for such payment constitutes a claim under 38 C.F.R. § 3.153. CONCLUSION OF LAW The criteria for entitlement to an effective date of April 1, 2013, but no earlier, for the award of DIC under 38 U.S.C. § 1318 have been met. 38 U.S.C. §§ 5105, 5110; 38 C.F.R. §§ 3.102, 3.153, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1962 to November 1976. Unfortunately, the Veteran died in April 2013. The appellant is his surviving spouse. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded this matter for additional development. As the actions specified in the remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an effective date earlier than July 15, 2014 for the award of DIC under 38 U.S.C. § 1318 The appellant is in receipt of DIC pursuant to 38 U.S.C. § 1318 from July 15, 2014 (with payments commencing on August 1, 2014). She seeks entitlement to an effective date earlier than July 15, 2014 for this award of benefits. In considering the evidence of record under the laws and regulations as set forth below, the Board concludes that an effective date of April 1, 2013, but no earlier, for the award of DIC under 38 U.S.C. § 1318 is warranted. Generally, the effective date of an award based on an initial claim for dependency and indemnity compensation 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). The effective date of an award for DIC for which an 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 effective date is the date of receipt of the claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). However, when an application on any document indicating an intent to apply for survivor benefits is filed with either the Secretary of VA or the Commissioner of Social Security, it shall be deemed to be an application for benefits from both SSA and VA. 38 U.S.C. § 5105. Specifically, an application on a form jointly prescribed by the Secretary and the Commissioner of Social Security, filed with SSA on for after January 1, 1957, will be considered a claim for VA death benefits, and to have been received by VA as of the date of receipt at SSA. 38 C.F.R. § 3.153. The Board notes that there are no statutes or regulations that define what constitutes a jointly prescribed form. However, the United States Court of Appeals for Veterans Claims (Court) has found that any claim sufficient to reflect an intent to apply for survivors' benefits filed with SSA will suffice to establish the effective date for DIC. Van Valkenburg v. Shinseki, 23 Vet. App. 113, 119 (2009). The Veteran died in April 2013. VA received the appellant's application for DIC, filed on VA Form 21-534EZ, on July 15, 2014. Thereafter, a July 2014 rating decision granted entitlement to DIC under 38 U.S.C. § 1318. A letter dated July 29, 2014 notified the appellant that her DIC benefits are effective July 15, 2014, the date of receipt of the claim for DIC, with payments to commence on August 1, 2014, the first day of the month following the effective date of entitlement to benefits. The appellant appealed the assigned effective date. The appellant and her representative contend that the effective date for the award of DIC should be in April 2013, the month of the Veteran's death. They argue the appellant received an SSA decision awarding her a lump sum death payment in June 2013 and that the document indicates she applied for the benefit, which triggers the application of 38 C.F.R. § 3.153. The appellant has stated that she applied for this benefit in-person at her local SSA office in June 2013. See July 2016 substantive appeal; November 2016 correspondence. The record shows that the appellant was, in fact, awarded a lump sum death payment of $255 from SSA in a June 2013 decision (i.e. within one year of the Veteran's death). The Board notes that the record does not contain documentation of a formal request or application for the payment; notably, in June 2021, SSA notified VA that any such application or records associated with the Veteran have since been destroyed and any further efforts to obtain them would be futile. However, upon review of the June 2013 award letter, the Board notes that the letter references a claim number and the decision explains that, if the appellant thinks she may qualify for another kind of SSA benefit in the future, she will have to file another application. In light of the above, and with consideration of the appellant's credible statement that she applied for the lump sum death payment in-person at her local SSA office in June 2013, the Board resolves all reasonable doubt in the appellant's favor and finds that the preponderance of the evidence shows that she did make a request or application for such payment. 38 U.S.C. § 5107(b). Based on the foregoing, the Board further finds that the appellant's request for the lump sum death payment from SSA constitutes a joint claim under 38 C.F.R. § 3.153 for the purpose of establishing the effective date for entitlement to DIC under 38. U.S.C. § 1318. See Van Valkenburg, 23 Vet. App. at 119; see also Kay v. Principi, 16 Vet. App. 529, 533 (2002) (finding the Board's conclusion that lump sum death payment benefits were intentionally excluded from law outlining jointly prescribed applications was unsupported by the record). Therefore, the appellant's application for DIC is considered to have been constructively received by VA in June 2013. Because the application for DIC was received by VA within one year of the Veteran's death, the effective date is the first day of the month in which the Veteran's death occurred, which is April 1, 2013. 38 U.S.C. § 5110(d). (Continued on next page) Accordingly, the Board finds that an effective date of April 1, 2013 for the award of DIC under 38 U.S.C. § 1318 is warranted. The Veteran does not contend, nor does the record otherwise reflect, that an effective date earlier than April 1, 2013 can be assigned. Therefore, the full benefit sought on appeal is granted. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.