Citation Nr: 21025590 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-50 154A DATE: April 28, 2021 ORDER An effective date prior to August 30, 2016, for the award of dependency and indemnity compensation (DIC) is denied. FINDINGS OF FACT 1. In a final rating decision issued in May 2015, the Agency of Original Jurisdiction (AOJ) denied entitlement to DIC, characterized as service connection for cause of death. 2. Following the issuance of the final May 2015 rating decision, the appellant did not file a formal claim or intent to file a claim for entitlement to DIC prior to the receipt of her formal claim on August 30, 2016. CONCLUSIONS OF LAW 1. The May 2015 rating decision that denied entitlement to DIC, characterized as service connection for cause of death, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). 2. The criteria for an effective date prior to August 30, 2016, for the award of DIC have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to December 1970. He died in September 2014 and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2017 by a Department of Veterans Affairs (VA) Regional Office. In November 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the appellant raised a claim asserting clear and unmistakable error (CUE) in the May 2015 rating decision that denied entitlement to DIC, characterized as service connection for cause of death. As the AOJ has not yet adjudicated such claim, it is referred for appropriate action. Entitlement to an effective date prior to August 30, 2016, for the award of DIC. The appellant seeks an effective date of September [REDACTED], 2014, the day after the Veteran’s death, or April 22, 2015, the date of receipt of her original claim, for the award of DIC. The assignment of an effective date for an award is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award of service-connected death after separation is the first day of the month in which the veteran’s death occurred if a claim is received within one year after the date of death; otherwise date of receipt of claim. 38 C.F.R. § 3.400(c)(2). The effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110. A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Pertinent to the instant case, as of March 24, 2015, VA no longer recognizes informal claims. In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant’s intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). The “intent to file” is a term of art defined by VA regulation, which can only be submitted in certain formats. Specifically, an intent to file a claim can be submitted in one of the following three ways: 1. A saved electronic application (as specified in section 3.155(b)(1)(i)). 2. A written intent on prescribed intent to file a claim form. The submission to an AOJ of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim; 3. Oral intent communicated to a designated VA personnel and recorded in writing, as further specified in 38 C.F.R. § 3.155(b)(1)(iii). If an intent to file a claim is not submitted in the form required by 38 C.F.R. § 3.155(b)(1), as described above, or a complete claim is not filed within one year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received. 38 C.F.R. § 3.155(b)(4). To implement the “intent to file” provisions, VA introduced a new form, VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits (VA Form 21-0966). 79 Fed. Reg. at 57,664. As explained in VA’s comments to the published final rule, this represents a standardized method of filing an informal claim which would be submitted in a format more amenable to efficient processing, while still allowing veterans to receive favorable effective date treatment similar to that available under the “informal claim” provisions. Id. at 57,665. It also achieves the standardization of the claims process by requiring that all claims or initiation of claims be filed on a VA-prescribed form. Id. In addition to the above, under current regulations, when a claimant, or other qualified individual as specified in section 3.155(a), “indicates a desire to file for benefits under the laws administered by VA, by a communication or action... that does not meet the standards of a complete claim,” this is considered a request for an application form for benefits under § 3.150(a). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). By way of background, the Veteran died on September [REDACTED], 2014, and VA received the appellant’s original claim for DIC on April 22, 2015. Thereafter, in a rating decision issued in May 2015, the AOJ denied entitlement to DIC, characterized as service connection for cause of death. On May 13, 2015, the appellant was advised of the decision and her appellate rights, and she submitted a notice of disagreement with the decision, which was received on May 18, 2016. However, as such was received more than one year following notification of the rating decision, the AOJ deemed it untimely in a July 2016 letter. 38 C.F.R. § 19.52(a). The appellant has not challenged the AOJ’s determination as to the timeliness of her notice of disagreement. Likewise, the medical records associated with the notice of disagreement were not received within one year of the issuance of the rating decision and no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision. Moreover, no relevant service department records have since been received. Therefore, the May 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). Rather, after the issuance of the final May 2015 rating decision, VA received the appellant’s formal application to reopen her claim of entitlement to DIC on August 30, 2016, and in a rating decision issued in February 2017, the AOJ granted service connection for the cause of the Veteran’s death, effective August 30, 2016, the date of receipt of such application. The appellant disagreed with the assigned effective date for the award of DIC, resulting in the instant appeal. Upon review, the Board finds there is no document of record that can be construed as a formal claim for DIC that was received after the issuance of the May 2015 rating decision and prior to the receipt of the appellant’s application to reopen on August 30, 2016. Additionally, although the appellant’s notice of disagreement with associated autopsy results and email correspondence, received on May 18, 2016, identified her former claim for entitlement to DIC, such was not submitted within one of the prescribed formats, as outlined above, so as to constitute an intent to file a claim. Moreover, even if such represents a communication or action indicating a desire to file for benefits, the date of receipt of such communication would not be a proper effective date for an award given the absence of a complete form at that time. Consequently, the Board finds August 30, 2016, represents the earliest effective date available for the award of DIC based on the receipt of a complete, formal claim following the final May 2015 rating decision and, thus, the appellant’s claim for an effective date prior to such for the award of DIC must be denied. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.