Citation Nr: A21019340 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 211004-188666 DATE: December 6, 2021 ORDER Entitlement to an effective date earlier than July 14, 2021 for the award of VA survivor's pension benefits is denied. FINDINGS OF FACT 1. In a March 2020 decision, the agency of original jurisdiction (AOJ) denied the appellant's claim for entitlement to VA survivor's pension benefits. The appellant was notified of her rights to appeal. 2. On July 26, 2021, more than one year after the March 2020 decision, the appellant filed a supplemental claim on VA Form 20-0995 requesting readjudication of her claim for entitlement to VA survivor's pension benefits. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 14, 2021 for the award of VA survivor's pension benefits have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.2500, 3.2501. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active military service from November 1942 to October 1945 and died in October 1975. The appellant is his surviving spouse. In July 2021, the appellant submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of her entitlement to VA survivor's pension benefits most recently addressed in a May 2020 decision. In July 2021, the AOJ issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and granted the claim based on the evidence of record at the time of that decision. In October 2012, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal, disagreeing with the effective date assigned to the grant of VA survivor's pension benefits. The appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 decision on appeal. 38 C.F.R. § 20.301. Entitlement to an effective date earlier than July 14, 2021 for the award of VA survivor's pension benefits The assignment of an effective date for an award of benefits is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim 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. For awards based on claims related to a veteran's nonservice-connected death after service that are received prior to October 1, 1984, or on or after December 10, 2004, the effective date of the award of benefits will be the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of death; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(c)(3)(i). Furthermore, under the Appeals Modernization Act (AMA) in effect since February 19, 2019, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in § 3.2500(c) within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than one year after the date on which the AOJ or the Board issued notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). In August 2019, the appellant filed a claim for VA survivor's benefits on VA Form 21-534EZ, which was denied in a May 2020 decision. In March 2021, the appellant submitted additional evidence without submitting a request for review under the AMA. Thereafter, in July 2021, the appellant filed a supplemental claim on VA Form 20-0995 requesting readjudication of the previous May 2020 denial. In the July 2021 decision on appeal, the AOJ granted the appellant entitlement to VA survivor's pension benefits as of July 14, 2021, the date of receipt of the appellant's supplemental claim. Consequently, the appellant did not continuously pursue her claim by filing for at least one of the review options specified in § 3.2500(c) within one year of the May 2020 decision denying her claim. Although the Board acknowledges that the appellant submitted additional evidence within one year of the May 2020 decision, that submission cannot be accepted as an informal claim As such, the earliest effective date that could be assigned pursuant to VA's laws and regulations is July 14, 2021, the date the appellant's supplemental claim was received. See 38 C.F.R. § 3.2500(h). In making this decision, the Board recognizes the appellant's argument that she was prevented from timely submitting her supplemental claim by a delay in obtaining records from the National Personnel Records Center because of Covid-19. However, she received the response from the NPRC and submitted records therefrom to VA within one year of the May 2020 decision. However, she erred in submitting the additional evidence without a proper claim or review form. Despite the appellant's contention she was not advised until after the March 2021 submission of additional evidence that she needed to submit a supplemental claim on VA Form 20-0995, the May 2020 decision notice advised her of what her next action should be if she disagreed with the decision (i.e., to file a supplemental claim, for higher-level review or an appeal to the Board) and that she had one year from the date of this notice letter to request a review option to preserve her earliest effective date. Moreover, the claims file contains correspondence from VA to the appellant dated in June 2020 showing that the appellant had telephoned VA and, based on that conversation, she was sent the forms to request review of the May 2020 decision. Based on these two letters, the appellant should have been aware of the need to submit a request for review within one year of the May 2020 decision in order to preserve her effective date (to include a supplemental claim with her additional evidence). Moreover, even if the appellant was delayed in filing a timely supplemental claim, the Board does not find that she was prevented from timely filing for one of the other review options available to her (i.e., for a higher-level review or an appeal to the Board), which would have preserved her earliest possible effective date. Therefore, although sympathetic to the appellant, the Board has no choice but to find that the provisions of 38 C.F.R. §§ 3.400 and 3.2500 are dispositive in this matter. As the appellant did not continuously pursue her claim for VA survivor's benefits, her claim for an earlier effective date for the award of such benefits must be denied because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.