Citation Nr: 21024612 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-49 583 DATE: April 23, 2021 ORDER Entitlement to an effective date of November 1, 2013, for the award of Dependency and Indemnity Compensation (DIC) based on service connection for the cause of the Veteran's death, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran died in October 2013 and the appellant submitted a claim for burial benefits on October 23, 2013, which was taken to also include a claim for DIC based on service connection for the cause of the Veteran’s death. 2. In May 2014, the agency of original jurisdiction (AOJ) awarded service connection for the cause of the Veteran’s death, and entitlement to DIC based on service connection for the cause of the Veteran’s death arose prior to or contemporaneous with the appellant’s October 23, 2013 claim. CONCLUSION OF LAW The criteria for an effective date of November 1, 2013 for the award of DIC based on service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1110, 1310, 5110 (d); 38 C.F.R. §§ 3.155 (a) (in effect prior to March 24, 2015), 3.156 (c)(3), 3.303 (a), 3.309 (c), 3.312, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from October 1968 to October 1972. The Veteran died and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As explained in more detail below, the AOJ initially awarded service connection for the Veteran’s cause of death in a May 2014 rating decision, but this decision was never implemented prior to the November 2016 rating decision in which the AOJ continued service connection for the cause of the Veteran’s death and awarded DIC. In May 2020, the appellant testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of her testimony is associated with the claims file. This is the only issue on appeal. Generally, the effective date of an evaluation and award of pension, compensation or DIC based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Where a grant of death compensation or DIC is made on the basis of a veteran’s service-connected death after separation from service, the effective date will be the first day of the month in which the veteran’s death occurred, if the claim is received within 1 year from the date of death; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (d); 38 C.F.R. § 3.400 (c)(2). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the original claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Pursuant to 38 U.S.C. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who died from a service-connected disability. See Darby v. Brown, 10 Vet. App. 243, 245 (1997). The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability is considered the principle cause of death when such disability, either singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related to the cause of death. 38 C.F.R. § 3.312 (b). In determining whether the disability that resulted in the death of a veteran was the result of active service, the laws and regulations pertaining to basic service connection apply. 38 U.S.C. § 1310 (a). Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In a DIC claim based on cause of death, the first requirement for service connection, evidence of current disability, will always have been met (the current disability being the condition that caused the Veteran to die). Carbino v. Gober, 10 Vet. App. 507, 509 (1997), aff’d sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds, for the following reasons, that an effective date of November 1, 2013 is warranted for the award of DIC based on service connection for the cause of the Veteran’s death. The Veteran died in October 2013. His death certificate lists the immediate cause of his death as carcinoma of the bladder (bladder cancer). Diabetes mellitus and hypertension were other conditions that contributed to the Veteran’s death. The current effective date of DIC is October 17, 2016, the date that the appellant’s formal claim for DIC was received. The appellant’s initial claim for death benefits was received by VA on October 23, 2013. See October 2013 VA Form 21-530, Application for Burial Benefits. The Board acknowledges that the October 2013 claim was specifically a claim for burial benefits. Regardless, the AOJ apparently interpreted the October 2013 claim (which they can do, under the law in 2013, as cited above) as including a claim of service connection for the cause of the Veteran’s death because it awarded service connection for the cause of the Veteran’s death in a May 2014 rating decision. The rating action of May 2014 clearly states that “service connection for cause of death is granted”. The AOJ did not, however, implement the award of service connection for the cause of the Veteran’s death or assign an effective date following the May 2014 decision. Rather, the AOJ granted service connection (again) for the Veteran’s cause of death on a contributory basis in a November 2016 rating decision. An effective date of October 17, 2016 was ultimately assigned for the award of DIC based on the appellant’s formal filing for DIC. See September 2017 Statement of the Case. In light of the fact that the AOJ interpreted the appellant’s October 2013 claim as including a claim of service connection for the cause of the Veteran’s death (as evident by the AOJ’s award of service connection for the cause of the Veteran’s death in the May 2014 rating decision), the fact that the AOJ did not implement the May 2014 decision or assign an effective date for the award of DIC until the November 2016 rating decision, the fact that the appellant filed a timely NOD with the effective date assigned in the November 2016 decision, and the fact that she has asserted entitlement to retroactive DIC benefits back to the date of the Veteran’s death, and resolving all reasonable doubt in the appellant’s favor, the Board finds that her October 2013 claim included a claim for DIC based on service connection for the cause of the Veteran’s death. Also, her current appeal is a valid way to assert entitlement to an earlier effective date for the award of DIC based on service connection for the cause of the Veteran’s death. See Ingram v. Nicholson, 21 Vet. App. 232 (2007) (a claimant’s identification of the benefit sought does not require any technical precision and a direct appeal of an effective date decision is an appropriate procedure for asserting entitlement to an earlier effective date based on a prior pending claim). (Continued on the next page)   Moreover, the AOJ found, and the Board agrees, that the evidence in the claims file at the time of the appellant’s October 2013 claim was sufficient to establish that entitlement to service connection for the cause of the Veteran’s death arose prior to or contemporaneous with the appellant’s October 23, 2013 DIC claim. The Veteran was service connected for diabetes mellitus and diabetes mellitus was listed as a contributory cause of his death. Because entitlement to DIC on the basis of service connection for the cause of the Veteran’s death arose prior to or contemporaneous with the appellant’s October 2013 claim and this claim was received within one year of the Veteran’s death in October 2013, the proper effective date for the award of DIC based on service connection for the cause of the Veteran’s death is November 1, 2013 (the first day of the month in which the Veteran’s death occurred). See 38 C.F.R. § 3.400 (c)(2). This is the earliest effective date allowable based on the relevant law and regulation pertaining to DIC claims. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.