Citation Nr: 21071607 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-58 733A DATE: November 30, 2021 ORDER Entitlement to an effective date earlier than December 1, 2015 for the award of Dependency and Indemnity Compensation (DIC) is denied. FINDINGS OF FACT 1. The Veteran died in May 2014. 2. VA received the Appellant's claim for DIC on November 23, 2015, and service connection for the Veteran's cause of death has been established from that date, with the award due on December 1, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than December 1, 2015 for the award of DIC are not met. 38 U.S.C. §§ 5103, 5103A, 5110, 7104; 38 C.F.R. §§ 3.5, 3.152, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1972 to August 1975. He died in May 2014. The Appellant is the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified at a Board hearing in October 2021. The transcript is associated with the record. Entitlement to an effective date earlier than December 1, 2015 for the award of Dependency and Indemnity Compensation The Appellant contends that the effective date for the grant of DIC benefits should be in May 2014, when the Veteran died, because, through no fault of her own, she was told to wait to file her claim. She states that was told to wait for an autopsy results showing his cause of death. Unfortunately, for the reasons explained below, the Appellant's claim for an earlier effective date must be denied. DIC may be awarded to a surviving spouse upon the service-connected death of a Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5 (a), 3,152; see generally 38 U.S.C. Chapter 11. For claims involving service-connected death after separation from service, if an application for DIC is received within one year from the date of death, the effective date of the award shall be the first day of the month in which the death occurred; otherwise, the effective date for DIC is the date of receipt of the claim. 38 U.S.C. § 5110 (d); 38 C.F.R. § 3.400 (c)(2). The undisputed facts in this case show the Veteran died in May 2014. On November 23, 2015, VA received the Appellant's claim for DIC benefits. She does not allege that she filed a claim earlier than November 2015. As the appellant's claim for DIC was received in November 2015, which is more than a year after the Veteran's May 2014 death, 38 C.F.R. § 3.400 (c)(2) (allowing the effective date of the award to be the first day of the month in which the death occurred) is not applicable. Moreover, since the claim was not received until November 2015, actual payment of her DIC benefits cannot commence until the first day of the following month, so as the RO correctly concluded, not until December 1, 2015. The Board recognizes the unfortunate facts of this case and is not unsympathetic to the Appellant's claim. The Appellant credibly reports that she would have applied for DIC benefits sooner had she received the necessary information, and she testified to her belief that VA should have known the Veteran's actual and contributory causes of death before November 23, 2015. Consideration has also been given to testimony that there were significant delays in receiving official paperwork the processing and issuing of the autopsy report. The Board further acknowledges the Appellant's diligence in attempting to obtain the autopsy results. However, the power to assign an earlier effective date for DIC benefits based on justice or equity is beyond the Board's authority. See Shields v. Brown, 8 Vet. App. 346, 351 (1995) (an earlier effective date for DIC benefits is not allowable under equitable estoppel because payment of government benefits must be authorized by statute). The controlling statute and regulation provide that the effective date for a grant of service connection for the cause of a veteran's death, in a case where the claim for DIC is not received within one year of the veteran's death, is the date of receipt of the DIC claim. 38 U.S.C. § 5110 (d); 38 C.F.R. § 3.400 (c)(2). The facts regarding the date of the Veteran's death and the date of receipt of appellant's DIC claim are not in dispute. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). As there is no legal basis for assignment of an effective date prior to December 1, 2015 for benefits based on service connection for the cause of the Veteran's death, the Board finds that an earlier effective date is not warranted. Additionally, where, as here, the law, and not the evidence, is dispositive, the appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, Associate 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.