92 Decision Citation: BVA 92-06894 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-42 997 ) DATE ) ) ) THE ISSUE Entitlement to an effective date earlier than July 1, 1989, for the award of dependency and indemnity compensation under 38 U.S.C. § 1318, formerly § 418 and § 410. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The veteran had active military service from May 1943 to May 1946. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal of a September 1989 award letter granting dependency and indemnity compensation benefits under 38 U.S.C. § 1318, with an effective date of July 1, 1989. A notice of disagreement was received in February 1991. A statement of the case was issued in June 1991. A substantive appeal was received in June 1991. The case was received and docketed at the Board in September 1991, and was referred to the appellant's representative, Disabled American Veterans, who submitted an additional statement in support of the appellant's claim in October 1991. The case is now ready for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that the award of dependency and indemnity compensation benefits should have been made effective earlier than July 1, 1989, because her claim for burial benefits, which was received October 30, 1987, should have been construed as a claim for dependency and indemnity compensation benefits filed within one year after the date of the veteran's death. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the prepoderance of the evidence is against the appellant's claim of entitlement to an effective date earlier than July 1, 1989, for the award of dependency and indemnity compensation benefits under 38 U.S.C. § 1318. FINDINGS OF FACT 1. The appellant's claim for burial benefits in October 1987 was not a claim for dependency and indemnity compensation benefits under 38 U.S.C. § 1318. 2. The appellant's claim for dependency and idemnity compensation benefits under 38 C.F.R. § 1318 was received June 28, 1989. CONCLUSION OF LAW The effective date of the award of dependency and indemnity compensation benefits is July 1, 1989, the first day of the month following receipt of the appellant's claim for such benefits. 38 U.S.C. §§ 1318, 5107 (1991); 38 C.F.R. §§ 3.22(a), 3.54(c)(2), 3.400(c) (1991). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that the provisions of 38 U.S.C. § 5107(a) have been met, in that the appellant's claim is well grounded and adequately developed. The facts in this case reveal that the veteran died on October 26, 1987, and that the appellant filed a VA Form 21-530 (Application for Burial Benefits) on October 30, 1987. At the time of death, the veteran had been in receipt of a total disability rating based on individual unemployability due to service-connected disabilities since July 11, 1974. The appellant had been married to the veteran since August 1941. Pursuant to the appellant's claim for burial benefits, the agency of original jurisdiction entered a rating decision in November 1987 denying service connection for the cause of the veteran's death. The rating decision noted that, at the time of death, a total disability evaluation had been in effect for 10 continuous years immediately preceding the veteran's death, and entitlement to benefits under 38 U.S.C. § 410(c) (now § 1318(c)) and 38 U.S.C. Chapter 35 was established. A surviving spouse is entitled to dependency and indemnity compensation benefits as if the veteran's death were service- connected when the veteran had been continuously rated totally disabling for a period of 10 or more years immediately preceding death, and the surviving spouse was married to the veteran for one year or more immediately preceding death. 38 U.S.C. § 1318; 38 C.F.R. §§ 3.22(a), 3.54(c)(2). A specific claim in the form prescribed by the secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. 3.152(a). While the guidelines in § 43.06(g)(4)(g) (prior to November 1991) of the Department of Veterans Affairs Adjudication Procedures Manual M21-1 instructed the RO to treat claims for burial benefits in certain situations as also claims for service connection for cause of the veteran's death, the instructions are otherwise silent and do not indicate that a claim for burial benefits should also be construed as a claim for dependency and indemnity compensation under the provisions of 38 U.S.C. § 418 (now § 1318). Subsequent to the November 1987 rating decision, the RO informed the appellant in a November 1987 letter that unless a claim for dependency and indemnity compensation benefits was filed within one year from the date of the veteran's death, benefits would only be payable from the date of receipt of such claim. That letter also notes that an application was enclosed for the appellant. It is the Board's opinion that the explanatory letter and the application provided to the appellant fulfilled the VA's duty to assist. A claim for dependency and indemnity compensation benefits was received on June 28, 1989. When there is an award of dependency and indemnity compensation benefits for nonservice-connected death after service, based on a claim received on or after October 1, 1984, the effective date is the first day of the month in which the veteran's death occurred if claim is received within 45 days after the date of death, otherwise, the effective date is the date of receipt of claim. 38 C.F.R. 3.400(c). Since the appellant's claim for dependency and indemnity compensation benefits under 38 U.S.C. § 418 (now § 1318), was received on June 28, 1989, which was more than one year after the veteran's death, the effective date of the award of dependency and indemnity compensation benefits, under the applicable laws and regulations, is July 1, 1989. 38 C.F.R. 3.31. Consequently, the Board is unable to identify a reasonable basis for granting the benefit sought on appeal. ORDER An effective date earlier than July 1, 1989, for the award of dependency and indemnity compensation benefits under 38 U.S.C. § 1318, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 M. SABULSKY HARRY M. McALLISTER, M.D. J. U. JOHNSON NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266, 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 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). 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.