Citation Nr: 21005822 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-10 993 DATE: February 2, 2021 ORDER Entitlement to an effective date prior to July 20, 2011 for the grant of service connection for the cause of the Veteran's death is denied. FINDINGS OF FACT 1. The appellant filed a claim of service connection for the cause of the Veteran’s death on July 20, 2012. 2. In an October 2012 rating decision, the RO granted service connection for the cause of the Veteran’s death due to a liberalizing law providing for presumptive service connection; 38 C.F.R. § 3.318, presumptive service connection for amyotrophic lateral sclerosis (ALS), became effective September 23, 2008. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 20, 2011 for the grant of service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.312, 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1943 to November 1945. Unfortunately, he died in April 1987 and the appellant in this case is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The appellant and her daughter presented sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2020. 1. Entitlement to an effective date prior to July 20, 2011 for the grant of service connection for the cause of the Veteran's death. The appellant filed this claim on July 2011. She asserts that cause of death should have been granted effective May [REDACTED], 1987, that is, the date of the Veteran’s death. During the November 2020 hearing, the appellant testified that when the Veteran died, she spoke with a Veteran Service Officer who informed her at that time that she was not eligible for any benefits. Alternatively, the appellant contends that the effective date for service connection for the cause of the Veteran’s death should be September 23, 2008, the effective date of the liberalizing law. Generally, the effective date of an award of service connection for cause of death which occurred after separation from service will be the first day of the month in which the Veteran’s death occurred if a claim is received within 1 year after the date of death; otherwise, date of receipt of claim. 38 U.S.C. § 5110(d); 38 C.F.R. § 3.400(c)(2). The appellant filed an original claim for benefits on July 20, 2012. Service connection for the cause of the Veteran’s death was granted in an October 2012 rating decision on a presumptive basis under 38 C.F.R. § 3.318. 38 C.F.R. § 3.318, which came into effect September 23, 2008, establishes a presumption of service connection for ALS for any Veteran who develops ALS at any time after separation from service, unless (1) there is affirmative evidence that it was not incurred during or aggravated by service; (2) there is affirmative evidence that it is due to the Veteran’s own willful misconduct; or (3) the Veteran did not have continuous active service of 90 days or more. The Board notes that service connection for the cause of the Veteran’s death was granted under the new regulatory presumption of 38 C.F.R. § 3.318. As a matter of law, benefits cannot be effective earlier than the effective date of the new regulations. As noted above, generally, the effective date of an award of service connection for cause of death which occurred after separation from service will be the first day of the month in which the Veteran’s death occurred if a claim is received within 1 year after the date of death; otherwise, date of receipt of claim. Here, the claim was received more than a year from the effective date of the September 23, 2008 liberalizing. However, under 38 C.F.R. § 3.114(a)(3), retroactive effective dates are allowed, to a certain extent, in cases where a grant or increase of compensation is awarded pursuant to a liberalizing law. As applicable in this case, 38 C.F.R. § 3.114 provides that if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). In this case, service connection for the Veteran’s cause of death was granted by an October 2012 rating decision based on a finding that the Veteran’s ALS is presumptively associated with his military service and was a contributory cause of his death. Because the appellant’s claim was “reviewed at the request of the claimant” more than one year after the effective date of the liberalizing law, benefits are authorized for a period of one year prior to the date of receipt of the appellant’s application. See 38 C.F.R. § 3.114. Thus, an effective date of July 20, 2011, one year prior to the date of receipt of the claim, is warranted. The Board is sympathetic to the appellant’s contentions that an earlier effective date for the cause of the Veteran’s death is warranted. However, the appellant filed her initial claim for benefits on July 20, 2012 and there is no indication of an earlier claim. No earlier effective date can be assigned as a matter of law. See 38 C.F.R. § 3.114, 3.400. Hence, the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.