Citation Nr: 21015981 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-44 767 DATE: March 18, 2021 ORDER An effective date of May 21, 2004, for the award of service connection for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. A September 1998 Board decision denied the appellant’s claim for service connection for the cause of the Veteran’s death, the appellant did not appeal or request reconsideration of that decision, and it became final. 2. A claim to reopen service connection for the cause of the Veteran’s death was received on May 21, 2004, and that claim remained pending until it was ultimately granted in an October 2016 Board decision. CONCLUSION OF LAW The criteria for an effective date of May 21, 2004, for the award of service connection for the cause of the Veteran’s death have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1959 to September 1979. The Veteran passed away in October 1988, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2016 Board decision, service connection was granted for the cause of the Veteran’s death. In a September 2016 rating decision, an effective date of October 13, 2011, was assigned, and the appellant appealed that effective date to the Board. In a March 2020 decision, the Board denied an effective date earlier than October 13, 2011, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board’s March 2020 decision and remanding it to the Board for readjudication. Effective Dates Unless specifically provided otherwise, the effective date of an award of compensation 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). If a claim for service-connected death is received within one year of the Veteran’s death, the effective date will be the first day of the month in which the Veteran’s death occurred; otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400(c)(2). The effective date of an award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). Prior to March 24, 2015, a “claim” was defined as a “formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1(p) (2014). 1. Entitlement to an effective date earlier than October 13, 2011, for the award of service connection for the cause of the Veteran’s death. The appellant asserts that she is entitled to an effective date of May 21, 2004 because her reopened claim for service connection for the cause of the Veteran’s death was received on that date, and it remained pending until the claim was ultimately granted in a June 2016 Board decision. Upon review of the record, the Board finds that an effective date of May 21, 2004 is warranted. In October 1988, the appellant first filed a claim for service connection for the cause of the Veteran’s death, which was denied in a May 1989 rating decision. In October 1990, the appellant filed a claim to reopen service connection for the cause of the Veteran’s death, which was denied in a December 1994 rating decision. Thereafter, the appellant appealed that decision to the Board. In September 1998, the Board denied the appellant’s claim because the evidence did not show that the Veteran’s colon cancer was caused by exposure to Agent Orange. The appellant did not appeal or request reconsideration of that decision; therefore, the September 1998 Board decision became final. See 38 U.S.C. §§ 7103, 7252; 38 C.F.R. § 20.1100. On May 21, 2004, the appellant submitted an informal claim to reopen service connection for the cause of the Veteran’s death. With that claim, she also submitted a May 1990 report of Admiral Zumwalt to the Secretary of VA regarding an association between exposure to Agent Orange in Vietnam and adverse health effects, including colon cancer. In a June 2004 letter, VA denied the claim. However, because the June 2004 letter did not advise the appellant of her right to appeal, the appellant’s May 2004 claim remained pending. See 38 C.F.R. § 3.103 (Every claimant has the right to written notice of the decision made on his or her claim, which includes the necessary procedures and time limits to initiate an appeal of the decision). VA subsequently received another request to reopen the claim, and service connection for the cause of the Veteran’s death was ultimately granted in a June 2016 Board decision.   In the March 2020 decision, the Board agreed that the appellant’s May 2004 claim remained pending until it was granted in June 2016, but concluded that entitlement to service connection for the cause of the Veteran’s death did not arise prior to October 13, 2011. In the October 2020 Joint Motion, the parties agreed that the Board erred in making that determination because it “limited its consideration of this issue to the evidence that existed on the record prior to the current effective date, October 13, 2011,” and it “should have reviewed all of the evidence of record to determine whether the evidence established a ‘date entitlement arose’ prior to October 13, 2011.” See Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (“[I]t is the information in a medical opinion, and not the date the medical opinion was provided, that is relevant when assigning an effective date.” (citing McGrath v. Goer, 14 Vet. App. 28, 35 (2000)). According to the Joint Motion, “[t]here is evidence in the record which was received after October 13, 2011, but which supports an effective date prior to that time,” including private medical opinions dated July 2012 and January 2016, which discussed and relied upon Admiral Zumwalt’s May 1990 report. Based on the foregoing, the Board finds that entitlement to service connection for the cause of the Veteran’s death had arisen when the May 2004 claim was received. Accordingly, an effective date of May 21, 2004 for the award of service connection for the cause of the Veteran’s death is granted. See 38 C.F.R. § 3.400(q)(2). The Board finds that an effective date earlier than May 21, 2004 is not warranted, as the record shows no communication received from the appellant between the September 1998 final Board decision and May 21, 2004, which may be interpreted as an informal claim to reopen service connection for the cause of the Veteran’s death. In March 2000, VA received a January 2000 treatment record relating to treatment for the Veteran’s son. In August 2002 and September 2002, the appellant submitted a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) appointing the American Legion as her representative and a request for a copy of the Veteran’s claims file. In January 2004, she submitted another VA Form 21-22 appointing the Texas Veterans Commission as her representative. However, a review of these documents reveals no communication from the appellant requesting a determination or evidencing a belief in entitlement to a benefit. Thus, they cannot be construed as an informal claim to reopen service connection for the cause of the Veteran’s death. Accordingly, an effective date earlier than May 21, 2004 is not warranted. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.