Citation Nr: 21024165 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-30 933 DATE: April 22, 2021 ORDER Entitlement to an effective date earlier than September 12, 2013 for the award of dependency and indemnity compensation (DIC) is denied. FINDING OF FACT There is no evidence the appellant filed a formal or informal claim for entitlement to dependency and indemnity compensation (DIC) prior to September 12, 2013. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than September 12, 2013 for the award of dependency and indemnity compensation (DIC) have not been met. 38 U.S.C. §§ 5110, 5121; 38 C.F.R. §§ 3.5, 3.152, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. He died in July 2010. The appellant is his widow. In the November 2013 notice of disagreement, the then representative raised a claim for revision of the September 2013 rating decision on the basis of clear and unmistakable error (CUE). As the rating decision at issue was appealed to the Board, and in fact is the action from which this appeal originates, his assertion of CUE is not actionable. As the representative surely realizes, when the Board issues a decision on this appeal, that decision will directly subsume the rating action at issue and will constitute the Secretary’s final decision on the matter. Thus, the September 2013 rating decision is not subject to collateral attack on the basis of CUE, though the Board’s decision may be so collaterally attacked. In August 2016, the Appellant testified at a Board videoconference hearing before the undersigned. In April 2018, the Board remanded the issue for records from the Social Security Administration. 1. Entitlement to an effective date earlier than September 12, 2013 for the award of dependency and indemnity compensation (DIC) The appellant claims that entitlement to DIC benefits should be effective July 20, 2010, the date of the Veteran’s death. The laws and regulations governing effective dates establish 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, dependency and indemnity compensation, 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). However, in the case of claims for DIC benefits, the effective date will be the first day of the month in which the death occurred if the application is received within one year from the date of death. 38 U.S.C. § 5110 (d). A certificate of death reflects that the Veteran died in July 2010. The appellant filed an Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child via VA Form 21-534 on September 12, 2013. The record does not contain a formal claim of entitlement to DIC prior to September 12, 2013, and there is no other documentation that might be interpreted or construed as a formal application for DIC benefits, or a VA Form 21-534. Thus, the Appellant's claim was not received within one year after the date of the Veteran's death, and as such, the award for service connection for the cause of the Veteran's death is date of receipt of application. 38 U.S.C. § 5110 (a). During the August 2016 Board hearing, she testified that in August 2010, after her husband died, she received a letter from VA expressing their condolences and informing her that she was entitled to receive the Veteran’s benefit for the month in which he died and that would be the last payment she would receive. The appellant also stated that in her conversations with the VA she was not informed by anyone at VA that she was entitled to receive additional VA benefits after the death of her husband. The Board notes that the August 9, 2010 VA correspondence listed additional benefits the appellant may be entitled to as well as a website and phone number to call for further information. The list included burial benefits and DIC as well as other VA benefits. In March 2014, the appellant was sent a VA Form 21-530, Application for Burial Benefits to complete and return with a copy of the paid funeral expenses. To date there is no copy of the completed form in the claims file. Correspondence dated in November 2014 and March 2015, informed the appellant the Social Security Administration confirmed that she filed an application for survivors benefits on July 28, 2010. The letters also informed the appellant that an earlier effective date for DIC could possibly be granted if she filed a VA Form 21-4182 with Social Security when she filed for survivors’ benefits. If she did, the appellant was asked to provide a copy of the form. VA made several attempts to obtain copies of all medical and other records the Social Security office used to determine entitlement to Social Security Disability benefits and Death benefits. Finally, in February 2020 the Social Security Administration sent a copy of the appellant’s application for widow’s benefits, the Lump Sum Death payment, and the Notice of Award for both benefits. Social Security confirmed that they had no record of a VA Form 21-4182 filed with their office. Based on the foregoing, the Board finds that there is no evidence the appellant filed a claim for DIC prior to September 12, 2013. Accordingly, an effective date earlier than September 12, 2013 is not warranted and the appeal must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.