Citation Nr: 21010679 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-12 471 DATE: February 25, 2021 ORDER Entitlement to an effective date earlier than July 31, 2014 for the award of service connection for the cause of the Veteran’s death is denied. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for a brain tumor in February 1974 that was denied in a rating decision dated in April 1974 and issued in May 1974; a June 1974 letter indicates that additional evidence had been considered and that the claim remained denied. 2. In June 1974, the Regional Office (RO) notified the Veteran that service connection for a brain tumor alleged with blackouts and headaches was denied. The Veteran did not file a notice of disagreement or submit new and material evidence within the applicable appeal period, and as such, the June 1974 administrative decision became final. 3. The Veteran died in June 1974; the cause of death is listed as grade four astrocytoma. 4. The appellant applied for burial benefits on August 14, 1974, which was denied in a September 1974 rating decision. 5. In September 1974, the RO notified the appellant that burial benefits were denied based on a finding that the Veteran’s death was not due to a service connected disease or injury. The appellant did not file a notice of disagreement or submit new and material evidence within the applicable period, and as such the September 1974 rating decision became final. 6. On July 31, 2015, the appellant file an application for her claim for service connection for the cause of the Veteran’s death. 7. In an October 2016 rating decision, the RO granted service connection for the cause of the Veteran’s death, effective July 31, 2014, one year prior to the date VA received her claim. CONCLUSIONS OF LAW 1. The April 1974 rating decision and June 1974 administrative decision are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1104. 2. The criteria for entitlement to an effective date earlier than July 31, 2014 for service connection for the cause of the Veteran’s death have not been met. 38 U.S.C. § 5110(d); 38 C.F.R. §§ 3.5, 3.114(a)(3), 3.152, 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1957 to July 1960. Regrettably, the Veteran died in June 1974. The appellant is his surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Houston, Texas. The appellant and her son testified at a video conference hearing before the undersigned Veterans Law Judge of the Board in January 2021. A transcript of the hearing has been associated with the claims file. Earlier Effective Date for Grant of Service Connection for Cause of Death The appellant contends that she is entitled to an earlier effective date for the grant of dependency and indemnity compensation (DIC) benefits for service connection for the cause of the Veteran’s death. Specifically, she argues that the April 1974 rating decision is not final because proper notice was not provided by VA. See e.g. Notice of Disagreement, November 29, 2016. Additionally, the appellant asserts that the appropriate effective date in this case is March 26, 2002, the effective date that brain cancer was added to the list of diseases that are presumed to be caused by exposure to radiation or to the date of the Veteran’s death. See e.g. Board Hearing Transcript, January 6, 2021. Effective dates for the award of VA benefits are generally governed by 38 U.S.C. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, DIC, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Further, the effective date of an award of death compensation or DIC for which the application is received within one year from the date of death shall be the first day of the month in which the death occurred; otherwise, the date of receipt of the claim. 38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff’d, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). 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). Here, the Veteran filed a claim for entitlement to service connection for a brain tumor in February 1974 and the claim was denied in an April 1974 rating decision. The Veteran was informed of the denial by letter on May 7, 1974. A June 3, 1974 letter indicated that additional evidence had been considered and that this evidence did not warrant any change in the previous determination as shown in the May 7, 1974. The Veteran died on June [REDACTED], 1974. His death certificate indicates that the immediate cause of his death was due to grade four astrocytoma. The appellant then filed a claim for entitlement to burial benefits in June 1974. Her claim was denied in a September 1974 rating decision. She was informed of the denial by letter in September 1974. The appellant did not file a notice of disagreement and no additional evidence pertinent to the issues of entitlement to service connection for a brain tumor was physically or constructively associated with the claims folder within one year of the June 1974 administrative decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Additionally, the appellant did not submit a claim for substitution, nor a claim for service connection for the cause of the Veteran’s death. Thus, the June 1974 administrative decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Effective March 26, 2002, cancers of the bone, brain, colon, lung, and ovary were added to the list of diseases specific to radiation-exposed veterans set forth at 38 C.F.R. § 3.309(d). See 67 Fed. Reg. 3612-01 (Jan. 25, 2002); see also 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). The record shows that the appellant filed an application for her claim for DIC on July 31, 2015. In a September 2015 rating decision, the RO denied service connection for the cause of the Veteran’s death and the appellant submitted a timely notice of disagreement. Then, in an October 2016 rating decision, the RO granted service connection for the cause of the Veteran’s death, effective July 31, 2014, one year prior to the date of her claim. This grant was based on presumptive provisions of 38 C.F.R. § 3.309(d) for brain cancer based on ionizing radiation exposure. The appellant filed a timely notice of disagreement in December 2016. The appellant perfected an appeal as to the assigned effective date. See VA Form 9, February 21, 2017. As discussed above, the June 1974 administrative decision is final, as neither the Veteran nor the appellant filed a notice of disagreement and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of that decision. As such, the June 1974 administrative decision is not subject to collateral attack in the absence of an allegation of clear and unmistakable error (CUE), which must be specifically pled. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Neither the appellant nor her representative have specifically alleged a claim of CUE in the June 1974 administrative decision. The Board acknowledges the arguments from the appellant and her current representative during the January 2021 virtual hearing indicating that proper notice with appellate rights were not provided by the RO at the time of June 1974 administrative decision and that the June 1974 administrative decision was therefore not final. In this regard, they allege that the RO should have granted an earlier effective date to 1974 as a result of the lack of proper notice of appellate rights. However, a review of the record reveals a May 7, 1974 letter as well as a June 3, 1974 letter that were sent to the Veteran. The May 1974 letter indicated that the Veteran’s claim for blackouts and headaches had been denied as not incurred in or aggravated by service and provided notice of procedural and appellate rights. Specifically, the letter stated that the Veteran may be represented by an accredited representative at no charge and that he may submit additional evidence to strengthen his claim. This May 1974 letter further notified the Veteran that the RO would arrange for a personal hearing to present evidence or argument on any point of importance in his claim if he desired and that this decision can be appealed to the Board at any time within one year from the date of this letter. This May 1974 letter further explained that the appeal process is started by filing a Notice of Disagreement and the Veteran may file such form by writing a letter to the RO stating that he wished to appeal and specifying what he disagreed with. The June 3, 1974 letter indicated that additional evidence of record had been considered and that this evidence does not warrant any change in the previous determination in May 1974. The June 1974 letter provided the same notice of procedural and appellate rights as was provided in the May 1974 letter. The Board finds that the Veteran was properly provided his appellate rights following the June 1974 administrative decision and that the June 1974 administrative decision is final. This argument is therefore without merit. The appellant further argues that an effective date of March 2002 for the award of the Veteran’s cause of death is warranted as this is when brain cancer was added to the presumptive provisions of 38 C.F.R. § 3.309(d). As noted above, brain cancer was added to 38 C.F.R. § 3.309(d) on March 26, 2002. This addition is a liberalizing law. However, an effective date prior to the date of claim cannot be assigned under Section 3.114 unless the claimant met all eligibility criteria for the liberalized benefit on March 26, 2002, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. VAOPGCPREC 26 97; see also McKay v. Brown, 9 Vet. App. 183, 186, 187, 188 (1996) (one year grace period gives claimants time to react after a change in the law, but the requirement of continuous disability does not apply when the liberalizing law has a retroactive effective date); Viglas v. Brown, 7 Vet. App. 1, 5 (1994) (section 5110(g) was intended to limit maximum amount of retroactive benefits recoverable to one year prior to the filing of an application). In short, an effective date may be assigned that is one year prior to the date of claim for cause of death benefits, but only if it can be all eligibility criteria were met on March 26, 2002. Upon review, the Board finds the evidence of record indicates the eligibility criteria for service connection for the cause of the Veteran’s death on March 26, 2002. The Veteran’s death certificate clearly indicates a cause of death of grade four astrocytoma and his personnel records reflect his participation in Operation Hardtack. Consequently, the Board finds the evidence of record indicates the Veteran’s cause of death predated March 26, 2002, the date of the applicable liberalizing law and that the appellant filed her claim on July 31, 2015. Consequently, an effective date of July 31, 2014, but no earlier, is warranted under 38 C.F.R. § 3.114. However, as the Board finds there is no document of record that can be construed as a formal or informal claim for service connection for the Veteran’s cause of death at any time after June 1974 and prior to July 31, 2015. As the appellant’s claim for DIC benefits was not reviewed on the initiative of VA or at the request of the appellant within one year of March 26, 2002, an earlier effective date for the award of service connection for the Veteran’s cause of death is not warranted pursuant to 38 C.F.R. § 3.400. The Board further acknowledges the appellant’s frustrations and contentions related to her hardships following the Veteran’s death, and the circumstances of his service; however, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 5110(g), the statutory authority for promulgating 38 C.F.R. § 3.114(a), does not impose a duty upon VA to seek out potential beneficiaries of a liberalizing law. See Lyman v. Brown, 5 Vet. App. 194, 196-97 (1993) (citing Wells v. Principi, 3 Vet. App. 307, 307-9 (1992)). As such, VA did not have a duty to notify the appellant about the change in regulation. (Continued on the next page)   Accordingly, the Board finds that an effective date earlier than July 31, 2014 for the grant of service connection for the cause of the Veteran’s death is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.