Citation Nr: 21007997 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-13 965 DATE: February 11, 2021 ORDER Entitlement to an effective date prior to October 28, 2008 for the grant of all accrued benefits, for purposes of an increased rate of Dependency Indemnity Compensation (DIC) under 38 U.S.C. § 1311(a)(2), is denied. FINDING OF FACT 1. The Veteran submitted claims to reopen his previously denied claims for entitlement to service connection for cognitive residuals of a traumatic brain injury (TBI) and for depressive disorder and posttraumatic stress disorder (PTSD) in October 2008. 2. The Veteran has been awarded 100 percent evaluations for cognitive residuals of TBI and for depression with PTSD effective October 28, 2008. 3. The Veteran passed away on September 3, 2010. CONCLUSION OF LAW The criteria for an effective date earlier than October 8, 2008 for the grant all accrued benefits, for purposes of an increased rate of DIC are not met. 38 U.S.C. §§ 1311, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1951 to October 1953. The Veteran passed away in September 2010. The Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). By way of background, a December 2010 decision granted entitlement to service connection for TBI rated 100 percent disabling for accrued benefits purposes, effective January 12, 2009, but denied service connection for the cause of the Veteran’s death. The denial was appealed. Service connection for the cause of death was then granted in the December 2011 Decision Review Officer (DRO) decision on appeal. The Appellant then sought an earlier effective date for the payment of an increased rate of DIC under 38 U.S.C. § 1311(a)(2), arguing that the Veteran was entitled to a 100 percent rating for service-connected conditions since 2001. In a subsequent November 2015 DRO decision, the RO granted an earlier effective date of October 29, 2008, for the residuals of TBI and awarded service connection for PTSD, rated 100 percent disabling, from the same date. The Appellant has continued her appeal for a yet earlier date. The Appellant testified at a December 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Appellant’s disagreement with the initially assigned effective dates of entitlement. Once the benefit sought is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Appellant in the development of the claim, which is not abrogated by the granting of the benefit. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Effective Date The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). The effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. See 38 C.F.R. § 3.1(p) (2014). The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to that date, a “claim” was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). Here, the Appellant seeks an effective date prior to October 8, 2008, for the 100 percent disability evaluation assigned for the Veteran’s service-connected residuals of TBI and for the 100 percent disability evaluation assigned for his service-connected depression and PTSD. Specifically, the Appellant seeks an effective date of 2001, the point in time at which the Veteran “couldn’t do anything for himself.” The Veteran filed an initial claim for TBI (as residuals of concussion) in 1955; the claim was denied an unappealed November 1955 rating decision. A claim to reopen was filed in April 1964, and was denied in September 1964. Reopening was again sought in a February 1996 claim. In July 1996 the RO declined to reopen his previously denied claim for entitlement to service connection for residuals The Veteran did not appeal that decision, nor did he submit new and material evidence within one year. Thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In September 2007, the Board issued a decision which denied the Veteran’s claim for service connection for depressive disorder. The Board decision was not appealed and was final on the day of issuance. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. On October 28, 2008, the Veteran’s claim seeking service connection for PTSD and a head injury, among other issues was received. In December 2009, a rating decision was issued denying service connection for PTSD and declining to reopen the claim for residuals of head injury. Ultimately, in November 2015, entitlement to accrued benefits for service-connected depressive disorder and PTSD and service connection for residuals of traumatic brain injury were granted, each with an evaluation of 100 percent effective October 28, 2008, the date his claim was received. After careful consideration, the Board finds that entitlement to earlier effective dates for accrued benefits, prior to October 8, 2008, is not warranted. The Veteran did not appeal the RO’s July 1996 decision continuing the denial of service connection for residuals of a TBI; nor did he appeal the Board’s denial of service connection for depressive disorder to the Court of Appeals for Veterans Claims. Additionally, no communication was received from the Veteran, his representative at the time, his Congressman, or any other party on his behalf indicating an intent to file a claim to reopen his previously denied claims for entitlement to service connection for residuals of TBI and for depressive disorder with PTSD prior to the actual claim received on October 28, 2008. The Appellant has not notified VA of any such evidence. Review of the claims file reveals no basis for inferring any intent to file claims to reopen prior to October 28, 2008, nor does it reveal any open appeals of the above noted final decisions. Generally, the effective date for service connection is not based on the date a disability began, but rather on the date of receipt of the claim. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Appellant bases her claim on the assertion that entitlement to the benefits was present prior to receipt of the claim, in contradiction of the established law and regulation. As the Veteran’s claim to reopen previously denied final claims was received in October 2008, VA laws and regulations preclude the assignment of an effective date earlier than the previously assigned date of October 8, 2008 for the grant of service connection for residuals of TBI and for depressive disorder and PTSD, for accrued benefits purposes. Therefore, the appeal must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board is most sympathetic to the Appellant’s situation, there is no legal basis for assigning an effective date earlier than October 28, 2008, for accrued benefits. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.