Citation Nr: 21006603 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-58 730A DATE: February 4, 2021 ORDER Entitlement to an earlier effective date than January 27, 2015 for service connection for the cause of death is denied. FINDINGS OF FACT 1. In a final decision dated in December 2013, the Board denied a claim of entitlement to service connection for the cause of death. 2. In March 2014, May 2014, and January 2015, the appellant’s motion for reconsideration of the December 2013 decision was denied. 3. In January 2015, the appellant submitted a motion for reconsideration, which was construed by the Agency of Original Jurisdiction (AOJ) as a request to reopen her claim for service connection for the cause of death. CONCLUSION OF LAW The criteria for an effective date prior to January 27, 2015 for the grant of service connection for the cause of death have not been met. 38 U.S.C. §§ 1502, 1521, 5110, 7105; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the U.S. Navy from January 1942 to November 1945 and October 1951 to September 1954, including service during World War II and the Korean War. The Veteran died in November 2004 and the appellant is the Veteran’s widowed spouse. The issue on appeal comes from an August 2015 rating decision which granted service connection for the cause of death, effective February 11, 2015. In an October 2016 rating decision, the AOJ granted an earlier effective date of January 27, 2015. The appellant is presumed to seek the maximum available benefit for a disability. As such, this claim is still considered to be on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The appellant testified in a February 2020 hearing before the undersigned. A copy of the transcript has been associated with the claims file. Entitlement to an earlier effective date than January 27, 2015 for service connection for the cause of death The appellant contends that she is entitled to an effective date of December 2004, or the date she initially filed her claim, for the grant of service connection for the cause of death. For claims involving service-connected death after separation from service, if an application for Death and Indemnity Compensation (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). For reopened claims, the effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). A decision by the Board is final unless the Chairman of the Board orders reconsideration of the decision. See 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Before turning to the merits, a brief review of the relevant procedural history of this case is necessary. The appellant originally filed a claim for service connection of the cause of death in December 2004. The Board denied the claim in a December 2013 decision. Thereafter, the appellant filed a motion for reconsideration in February 2014, which was denied by the Deputy Vice Chairman in March 2014. The appellant filed a second motion for reconsideration in April 2014, which was denied by the Deputy Vice Chairman in May 2014. The appellant’s third motion for reconsideration was received by the Board in December 2014 and denied by the Deputy Vice Chairman in January 2015. In February 2015, the appellant filed to reopen a claim for service connection for the cause of death. In August 2015, the AOJ granted service connection for the cause of death with an effective date of February 11, 2015. The appellant filed a timely notice of disagreement in September 2015, seeking an effective date back to her original December 2004 filing for service connection for the cause of death. In an October 2016 rating decision, the AOJ granted an earlier effective date of January 27, 2015, construing the untimely and third motion for reconsideration as a request to reopen service connection for the cause of death. The appellant filed a timely substantive appeal in February 2016. Upon review of the record, the Board finds the appropriate effective date for the grant of service connection for the cause of death is January 27, 2015. First, the Board’s December 2013 decision is final as the appellant did not appeal the decision to the Court and the Chairman of the Board has not ordered reconsideration of this decision. Therefore, as this is a reopened claim, the effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. The appellant’s current claim for DIC benefits was received by VA on January 27, 2015, after entitlement arose, which occurred upon the Veteran’s death in November 2004. Therefore, the effective date has been correctly established as January 27, 2015. An earlier effective date for the grant of service connection for the cause of death is not warranted and the appeal is denied. An earlier effective date is therefore not warranted, and the Board finds the appellant has been awarded the earliest possible effective date for the grant of benefits, the date VA received her claim to reopen entitlement to service connection. As such, the Veteran’s claim for an effective date prior to January 27, 2015 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.