Citation Nr: 21026295 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-13 967A DATE: April 30, 2021 REMANDED Entitlement to an effective date prior to May 28, 2015, for the grant of Survivors Pension benefits, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1951 to October 1954. He died in July 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 administrative decision by the Department of Veterans Affairs (VA). The appellant is the Veteran’s surviving spouse. She testified at a Travel Board hearing in October 2019 in Winston-Salem, North Carolina (NC) before the undersigned. This appeal was denied by the Board in December 2019. That decision was vacated pursuant to a December 2020 order from the United States Court of Appeals for Veterans Claims (Court), which granted a joint motion for remand (JMR). Consequently, the appeal is now back before the Board.   Entitlement to an effective date prior to May 28, 2015, for the grant of Survivors Pension benefits, is remanded. In November 2015, the VA regional office (RO) in Philadelphia, PA, determined that the appellant was entitled to Survivors Pension (formerly referred to as “death pension”), effective May 28, 2015. 11/19/2015, Notification Letter. The appellant is requesting that the grant of entitlement to Survivors Pension be made retroactive to 2006. 03/11/2016, Statement in Support of Claim. In support of this request, she asserts that, in August 2006, she went to the RO in Winston-Salem, NC, to apply for widow benefits, but was misinformed by a VA front desk employee that she was not eligible for VA benefits because the Veteran’s death was not service-connected. The appellant asserts that VA’s misguidance caused her to miss out on VA benefits for multiple years and that she should be retroactively compensated. Id.; 09/01/2016, Congressionals; 10/13/2016, Statement in Support of Claim; 03/13/2017, Form 9; 11/05/2019, Hearing Transcript; 11/05/2019, Correspondence. The effective date of an award of death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C. § 5110(d). Otherwise, the effective date of an award based on an initial claim of pension shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the claim. 38 U.S.C. § 5110(a). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. The present appeal stems from a claim that was received on May 28, 2015. Notwithstanding, for purposes of determining whether a claim was received in 2006, the former regulations are applicable, and will be discussed next. A specific claim in the form prescribed by VA must be filed in order for death benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.152. Notwithstanding, under the former regulations, any communication or action, indicating an attempt to apply for benefits under laws administered by VA from a claimant may have been considered an informal claim. Such an informal claim must have identified the benefit sought. Upon receipt of an informal claim, if a formal claim had not been filed, an application form would have been forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2006). The United States Court of Appeal for Veterans Claims (Court) has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); 38 C.F.R. § 3.155(a); see also MacPhee v. Nicholson, 459 F.3d 1323, 1325 (holding that VA regulations require claimant to identify benefit sought and indicate intent to apply for benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). On the requirement that an informal claim be in writing, the Court has stated that to permit an oral statement to constitute the filing of an informal claim would create serious problems in the operation of VA benefits programs. Rodriguez, 189 F.3d. at 1354. In this case, prior to May 2015, there is no record of any written communication that can reasonably be construed as a formal or informal claim of entitlement to Survivors Pension. Rather, the appellant’s account of events indicates that her only contact with the RO in 2006 was an in-person, verbal interaction with a VA front desk employee. Her account of events further indicates that, after being informed that she was not eligible for VA benefits, she refrained from submitting a formal claim for benefits for many years, until finally doing so in May 2015. *** Under certain circumstances, survivors of Veterans can jointly apply for death benefits with the Social Security Administration (SSA) and with VA through the use of one application form filed with only one of the two agencies. See 42 U.S.C. § 402(o); 38 U.S.C. § 5105; 38 C.F.R. § 3.153. In this case, the record contains a SSA Inquiry Profile for the appellant showing her date of current SSA entitlement as July 2006 (the month of the Veteran’s death) and referencing a “denied claim.” In view of this, and since certain claims for SSA benefits can be accepted as claims for survivor benefits with VA, the Board finds that VA has a duty to obtain any relevant SSA records. 38 U.S.C. § 5103A. After conducting this and any other development that is deemed necessary, the Agency of Original Jurisdiction (AOJ) should make a determination as to whether the appellant filed an application with the SSA that can be construed as an earlier claim for VA Survivors Pension benefits pursuant to 42 U.S.C. § 402(o), 38 U.S.C. § 5105 and 38 C.F.R. § 3.153. *** Pursuant to the December 2020 JMR, the AOJ should also take appropriate action to determine whether a “Report of Contact” form was prepared or should have been prepared at the time of the appellant’s contact with the RO in 2006, and if so, attempt to obtain that information. The AOJ must issue a memorandum documenting all efforts undertaken and explaining any conclusions reached. This matter is REMANDED for the following actions: 1. Contact the SSA and requests records of any claim for SSA death benefits filed by the appellant. (Continued on the next page) 2. After conducting the development in #1 and any other development that is deemed necessary, the AOJ is to make a determination as to whether the appellant filed an application with the SSA that can be construed as an earlier claim for VA Survivors Pension benefits pursuant to 42 U.S.C. § 402(o), 38 U.S.C. § 5105, and 38 C.F.R. § 3.153. 3. Additionally, take any appropriate action(s) to determine whether a “Report of Contact” form was prepared or should have been prepared at the time of the appellant’s contact with the RO in 2006, and if so, attempt to obtain that information. The AOJ must issue a memorandum documenting all efforts undertaken and explaining any conclusions reached. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.