Citation Nr: 21015444 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-47 218 DATE: March 17, 2021 ORDER Entitlement to an effective date earlier than April 1, 2016 for the award of Dependency and Indemnity Compensation (DIC) is denied. FINDING OF FACT 1. The Veteran died in February 2014. 2. The appellant’s claim for DIC was received by VA on March 29, 2016. CONCLUSION OF LAW The criteria for an effective date prior to April 1, 2016, for the grant of DIC are not met. 38 U.S.C. §§ 5103, 5103A, 5110(d), 7104; 38 C.F.R. §§ 3.5, 3.152, 3.400(c)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1962 to March 1966. He died in February 2014. The appellant claims as his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the appellant’s claim of entitlement to an earlier effective date for DIC in a decision dated February 2019. The appellant appealed the denial of the claim to the Court of Appeals for Veterans Claims (Court). In a June 2020 Joint Motion for Remand (JMR), the parties agreed that the Board erred by providing an inadequate statement of reasons or bases in denying the appellant’s claim. Specifically, although the Board indicated that the RO granted service connection effective April 1, 2016, the May 2016 letter from the RO noted that the effective date was March 1, 2015. Therefore, remand was warranted for the Board to provide an adequate statement of reason or bases for its determination to address that discrepancy. Also, on remand, the Board was to address the appellant’s April 2014 statement and whether it should be considered an informal claim. In this regard, the appellant asked the RO about “death benefits” and indicated that she wanted these benefits “to help pay for cremation costs.” Earlier effective date for the award of DIC DIC may be awarded to a surviving spouse upon the service-connected death of a Veteran, with service connection determined according to the standards applicable to disability compensation. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3,152; see generally 38 U.S.C. Chapter 11. Generally, a Veteran’s death is service connected if it resulted from a disability incurred or aggravated in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 101(16), 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303. For claims involving service-connected death after separation from service, if an application for 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). The undisputed facts in this case show the Veteran died in February 2014. At the time of the Veteran’s death, service connection had been established for diabetes mellitus. On March 29, 2016, VA received the appellant’s claim for DIC benefits. The appellant contends that, because the Veteran died in February 2014, the effective date of DIC benefits should also be in February 2014. She contends that she did not file for DIC benefits sooner as VA employees told her she was eligible for “burial benefits only”. She does not allege that she filed a claim earlier than March 2016. As the appellant’s claim for DIC was received in March 2016, which is not within one year of the Veteran’s February 2014 death, 38 U.S.C. § 5110(d) (allowing the effective date of the award to be the first day of the month in which the death occurred) is not applicable. Moreover, since the claim was not received until March 2016, actual payment of her DIC benefits cannot commence until the first day of the following month, so as the RO correctly concluded, not until April 1, 2016. The Board acknowledges the May 2016 letter from the RO noting that the effective date of the appellant’s DIC benefits was effective March 1, 2015. However, this clearly appears to be a typographical error as there is no other indication that the RO believed the effective date to be such. Indeed, in the subsequent statement of the case (SOC) dated September 2016, the RO referred to the effective date as April 1, 2016. Additionally, the Board notes the appellant’s correspondence received by VA in April 2014 in which she desired to know how to apply for “$300.00 death benefit to help pay for cremation costs…” However, the Board finds that such correspondence does not reveal an intent to file for a claim for DIC. As discussed above, the appellant reported that she did not file for DIC benefits sooner than March 29, 2016 and was not aware that such benefits existed prior to that date. Moreover, the only other claim filed by the appellant prior to March 29, 2016 was a November 2015 application for burial benefits which was awarded in a subsequent February 2016 RO decision. Notably, in the November 2015 claim for burial benefits, the appellant again requested cremation expenses. As such, the April 2014 correspondence from the appellant referred to burial benefits. The Board recognizes the unfortunate facts of this case. The appellant reports that she would have applied for DIC benefits sooner had she received the necessary information. However, the power to assign an earlier effective date for DIC benefits based on justice or equity is beyond the Board’s authority. See Shields v. Brown, 8 Vet. App. 346, 351 (1995) (an earlier effective date for DIC benefits is not allowable under equitable estoppel because payment of government benefits must be authorized by statute). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.