92 Decision Citation: BVA 92-06195 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-20 929 ) DATE ) ) ) THE ISSUE Entitlement to an effective date prior to March 18, 1988, for an award of accrued improved disability pension benefits. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Derek R. Brown, Counsel INTRODUCTION The veteran served on active duty from February 1962 to June 1966. He died on May [redacted], 1988. This matter arises from the May 31, 1989, rating decision of the Detroit, Michigan, Regional Office (hereinafter "the RO") establishing an effective date of March 18, 1988 for the benefit in controversy. A notice of disagreement was received on December 1, 1989, and a statement of the case was issued on February 2, 1990. On March 5, 1990, the appellant's substantive appeal was received, and her representative, the Veterans of Foreign Wars of the United States, submitted a VA Form 1-646 on April 25, 1990. On May 30, 1990, the appellant's claim was placed on the docket of the Board of Veterans' Appeals (hereinafter "the Board"). Her representative then submitted a statement to the Board on October 1, 1990. On December 7, 1990, the Board denied an effective date prior to March 18, 1988, for an award of accrued improved disability pension benefits. The appellant then filed a timely appeal with the United States Court of Veterans Appeals (hereinafter "the Court"). On November 7, 1991, the appellant's representative and the Secretary of Veterans Affairs filed a motion styled, "Joint Motion for Remand and to Stay Further Proceedings," in light of the Board's failure to consider the revised provisions of 38 C.F.R. § 3.109(b) (effective April 11, 1990), and in view of the Court's decision in Karnas v. Derwinski, U.S. Vet. App. No. 90-312 (June 11, 1991). On December 9, 1991, the Court granted the motion, vacated the Board's prior decision, and remanded this case for further proceedings in accordance with 38 U.S.C. § 7252(a). Accordingly, the Board now reviews the appellant's claim on a de novo basis. The joint motion directed the Board to consider the appellant's claim in light of the revised provisions of 38 C.F.R. § 3.109(b); articulate the reasons and bases for its findings and conclusions; and elaborate upon the applicability of the doctrine of "benefit of the doubt," pursuant to 38 U.S.C. § 5107(b). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that an effective date prior to March 18, 1988, for an award of accrued improved disability pension benefits is warranted. In this regard, it is maintained that both the veteran and the appellant were unaware of the laws and regulations governing veterans benefits, and that they were therefore totally reliant on the assistance and advice provided by a Department of Veterans Affairs employee in completing the initial claim for pension. As a consequence, it is argued that it is fundamentally unfair for the Department to penalize the appellant by not awarding an earlier effective date for accrued improved disability pension benefits solely because of a Department of Veterans Affairs employee's purported failure to advise the veteran to apply for retroactive benefits. Alternatively, it is argued that the veteran was so disabled that filing a claim for improved disability pension benefits was not possible, and that paragraph 50.47(k) of the Department of Veterans Affairs' Veterans Benefits Administration Manual M21-1 warrants an allowance of the benefit sought on appeal. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, the Board denies an effective date prior to March 18, 1988, for an award of accrued improved disability pension benefits. FINDINGS OF FACT 1. The veteran's claim for improved disability pension benefits was not received prior to March 18, 1988. 2. The veteran did not claim entitlement to retroactive improved disability pension benefits prior to his death. CONCLUSION OF LAW An effective date prior to March 18, 1988, for an award of accrued improved disability pension benefits is not warranted. 38 U.S.C. §§ 5107, 5110, 5121; 38 C.F.R. §§ 3.109(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A review of the claims file reveals the claim to be well grounded, Murphy v. Derwinski, U.S. Vet. App. No. 90-107 (Nov. 8, 1990), and that appropriate development has been conducted in accordance with 38 U.S.C. § 5107(a). Upon the death of a veteran, periodic monetary benefits to which he was entitled, on the basis of evidence in the claims file on the date of death, and due and unpaid for a period not more than one year prior to death, may be paid to a surviving spouse. 38 U.S.C. § 5121. In general, the effective date of an award of disability pension benefits will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the application for benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In examining the objective evidence of record at the time of the veteran's death, the Board observes that a claim for improved disability pension benefits was not received prior to March 18, 1988. There is, however, an exception to the general rule applicable to the assignment of effective dates in pension claims. The pertinent Federal Regulation provides that: "If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran." 38 C.F.R. § 3.400(b)(ii)(B) (emphasis added). The veteran, in this case, never filed a claim for an award of retroactive benefits prior to his demise. In the absence of such a claim, the VA has no duty to consider whether the veteran was precluded from filing a claim for pension benefits due to disability. The appellant has contended that it was this Department's fault that the veteran did not file a claim for retroactive pension benefits. She indicates that a VA employee who helped her husband complete the application for benefits failed to inform him to indicate on the form that he wished to pursue a claim for retroactive pension benefits. When the veteran filed his initial claim for benefits on VA Form 21-526, he was informed on an attachment to this form that if he wanted the claim for pension to be considered a claim for retroactive benefits, he must so indicate on Item 40 and identify the specific disability which prevented him from filing. He made no such indications in the allotted space on the form. The veteran signed this form and it was incumbent on him to read the accompanying directions. His failure to do so cannot be excused on the basis of alleged reliance on a VA employee. While this Department attempts to inform veteran's of all possible benefits to which he or she may be entitled, the ultimate responsibility for claiming such benefits rests with the veteran himself. To hold otherwise would place an undue burden on the VA. It must be recalled that: "...everyone dealing with the government is charged with knowledge of federal statutes and lawfully promulgated agency regulations." Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Thus, regulations are binding on all those who seek to come within their sphere, 'regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance.' Id. at 385." Morris v. Derwinski, U.S. Vet. App. No. 90-305, slip op. at 7-8 (May 24, l991). While the provisions of Department of Veterans Affairs Veterans Benefits Administration Manual M21-1 have been suggested as a basis for an allowance, no support in the manual for this proposition has been found. Rather, paragraph 50.47(k) provides that the VA will not invite a claim to establish entitlement to a retroactive payment of disability pension. Reference is made to the instructions contained in VA Form 21-526. Further, the rating board is instructed to request authorization to advise a claimant that retroactive benefits might be payable if they determine that a qualifying disability may exist. The rating board did follow these instructions. In a rating board decision of June 22, 1988, it was indicated that the veteran should be advised of his right to file a claim for retroactive benefits. The veteran, unfortunately, had died the previous month. In conclusion, the preponderance of the evidence is against an earlier effective date for an award of accrued improved disability pension benefits in light of applicable legal criteria. In so holding, this panel has considered the provisions of 38 C.F.R. § 3.109(b). This regulation provides that the time limits within which claimants are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. This provision contemplates a claim having been filed. In this case, however, no retroactive claim was ever submitted by the veteran. Thus, for effective date purposes, a justifiable challenge may not be raised concerning the effective date based upon this provision. ORDER An effective date prior to March 18, 1988, for an award of accrued improved disability benefits is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 I. S. SHERMAN IRVIN H. PEISER, M.D. E. W. SEERY NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991) (formerly § 4066), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.