Citation NR: 9703456 Decision Date: 01/31/97 Archive Date: 02/12/97 DOCKET NO. 95-12 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to November 28, 1994, for the grant of improved death pension benefits. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The appellant is the surviving spouse of the veteran. The veteran had active service from August 1948 to October 1951, and died in July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1994 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she is entitled to receive improved death pension benefits prior to November 28, 1994. She asserts that she would have filed an application for improved death pension benefits immediately after the veteran’s death but for the VA’s failure to timely provide her with an application. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the appellant's claim for an effective date prior to November 28, 1994, for the grant of improved death pension benefits. FINDINGS OF FACT 1. The RO has secured all of the relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. In August 1975, the RO granted the veteran disability pension benefits, effective from November 1974. 3. In December 1993, the RO granted the veteran special monthly pension benefits, effective from September 1993. 4. In July 1994, the veteran died. 5. Service connection was never claimed or established for any of the veteran’s disabilities. 6. The RO was first notified of the veteran’s death on August 1, 1994, and it processed a First Notice of Death the same day. 7. On November 28, 1994, the appellant filed a claim for improved death pension benefits. 8. In December 1994, the RO granted the appellant improved death pension benefits, effective from November 28, 1994. CONCLUSION OF LAW November 28, 1994, is the earliest effective date that the appellant is entitled to an award of improved death pension benefits, and December 1, 1994, is the earliest date that the appellant is entitled to payment of improved death pension benefits. 38 U.S.C.A. §§ 3501(a)(1)(B),(D), 5101(a), 5110(d)(2), 5111(a), 7721, 7722 (West 1991); 38 C.F.R. §§ 3.31, 3.105(a), 3.152(a), 3.400(c)(3)(ii) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking an effective date prior to November 28, 1994, for the grant of improved death pension benefits (pension benefits). She has presented a well-grounded claim, which is a claim that is plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The VA, in turn, has assisted her in fully developing the facts relevant to her claim as required by 38 U.S.C.A. § 5107(a). In August 1975, the RO granted the veteran disability pension benefits, effective from November 1974, and in December 1993, the RO granted the veteran special monthly pension benefits, effective from September 1993. Service connection was never claimed or established for any disability. In July 1994, the veteran died. The RO was first notified of the veteran’s death on August 1, 1994, when it received the appellant’s claim for burial benefits, and it processed a First Notice of Death the same day. On November 28, 1994, the appellant filed an Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits By A Surviving Spouse Or Child (application or claim). The date of entitlement to improved death pension benefits is the date of a veteran's death if a claim is received by an RO within forty-five days of the date of death, otherwise the date of entitlement is the date a claim was received. 38 U.S.C.A. § 5110(d)(2); 38 C.F.R. § 3.400(c)(3)(ii). The payment of monetary benefits based on an original or reopened death pension claim begins the first day of the calendar month following the month in which the award became effective. 38 U.S.C.A. § 5111(a); 38 C.F.R. § 3.31. The veteran died in July 1994, and the RO received the appellant’s claim for pension benefits in November 1994, which was more than forty-five days after the date of the veteran's death. Accordingly, the date of the appellant’s basic entitlement to pension benefits was November 28, 1994, which was the date that the RO received her claim, and the date of payment of monetary benefits was December 1, 1994, which was the first day of the calendar month following the month in which the award of basic entitlement became effective. The appellant contends that but for the RO’s failure to timely send her an application for pension benefits, she would have filed her claim immediately after the veteran’s death. In support of her claim, she avers that the RO, in failing to timely provide a claims form, violated its duty to distribute information to her regarding her eligibility to pension benefits pursuant to 38 U.S.C.A. § 7722. Section 7722 provides that “[t]he Secretary shall distribute full information to eligible veterans and eligible dependents regarding all benefits and services to which they may be entitled to under laws administered by the Department . . . .” 38 U.S.C.A. § 7722(c) (emphasis added). 38 U.S.C.A. § 7721(b)(2) provides that the term eligible dependent “means an ‘eligible person’ as defined in section 3501(a)(1) of this title.” An eligible person is defined as “the surviving spouse of any person who died of a service-connected disability.” or “the spouse of any person who has a total disability permanent in nature resulting from a service- connected disability, or the surviving spouse of a veteran who died while a disability so evaluated was in existence”. 38 U.S.C.A. § 3501(a)(1)(B)(D) (1995). The VA’s duty to distribute information pursuant to 38 U.S.C.A. § 7722 extends, therefore, to surviving spouses of veterans whose death was due to a service-connected disability or veterans who had or were evaluated as having a total disability permanent in nature resulting from a service-connected disability. VA O.G.C. Prec. Op. No. 17-95 (June 21, 1995) (emphasis added). See also Thompson v. Brown, 6 Vet.App. 436, 438 (1994). The veteran’s certificate of death relates that he died from respiratory failure secondary to obstructive lung disease. At the time of his death, service connection had never been claimed or established for any disability. In response to the appellant’s claim for burial benefits, the RO informed her, in August 1994, that it had authorized payment of burial expenses, and that the evidence did not show that the veteran’s death had been due to a service-connected disability. In response to question number ten of the claims form, the appellant indicated that she was not claiming that the veteran’s death was due to a service-connected disability. Given that the evidence does not show, nor does the appellant now contend, that the veteran’s death was due to a service-connected disability or that he had or was evaluated as having a total permanent disability resulting from service-connected disability, the VA had no Section 7722 duty to distribute information to her regarding her eligibility to pension benefits. Her argument that an earlier effective date should be assigned for her pension benefits based upon the VA’s violation of this duty is, therefore, misplaced. In addition to the foregoing, the appellant also avers that the RO, in failing to timely provide a claims form, violated its own policy of mailing claims forms pursuant to M21-1, Part II, Chapter 5 (M21). M21-1 provides, in pertinent part, that the RO should “[r]eview the [notice of death] mail, the claims folder (if it is on station), and run [computer searches] to determine whether an application for death benefits should be furnished to the survivors of the deceased veteran,” and if so, the RO should “send VA Form 21-534, ‘Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits By A Surviving Spouse Or Child’.” M21-1, Part II, Chapter 5, Section 5.30(a)-(b) (emphasis added). Given that M21-1 broadly refers to “death benefits” without reference to the type, i.e., service- connected or nonservice-connected, and that the VA uses the same claims form for both service-connected and nonservice- connected death benefits, it is unclear whether the M21-1 provision is simply implementing the VA’s Section 7722 duty to distribute information to surviving spouses of veterans who died of a service-connected disability or who were totally and permanently disabled due to service-connected disability, or whether the VA has voluntarily undertaken the duty to inform all surviving spouses of veterans irrespective of the service-connected disability factor of their eligibility to benefits. The difference is significant in that the Court of Veterans Appeals has held that M21 substantive rules are the equivalent of VA regulations. Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990); Hamilton v. Derwinski, 2 Vet.App. 671, 675 (1992). The Board concludes that the former interpretation, implementation of the VA’s Section 7722 duty to distribute information to surviving spouses of veterans who died of a service-connected disability or who had or were evaluated as having permanent total service-connected disability, appears to be the more likely reading of the M21-1 provision given that the VA’s statutory duty to distribute information extends only to such cases. Here, the RO reviewed, sua sponte, the veteran’s file prior to the appellant’s claim, and informed her in August 1994 that it found no evidence indicating that the veteran’s death had been due to a service-connected disability. In finding no evidence showing that the veteran’s death was service-connected, the RO found it was unnecessary to send a claims form. In any event, even if M21-1 applied to death pension claims, VA law and regulations do not provide a legal basis for the assignment of an earlier effective date. The VA General Counsel has indicated that even when the VA has a Section 7722 duty to distribute information, a breach of that duty does not provide a basis for the award of retroactive benefits, although the Secretary of the VA may order equitable relief. VA O.G.C. Prec. Op. No. 17-95 (June 21, 1995). The authority to provide equitable relief is committed to the sole discretion of the Secretary. McCay v. Brown, 9 Vet.App. 183, 189 (1996). Thus, even if the VA had a Section 7722 duty, i.e., a statutory duty, to send the appellant a claims form as opposed to, as she avers, a policy manual duty, the Board is without authority to provide relief. The appellant contends that the VA committed a clear and unmistakable error in failing to timely mail her an application for death pension benefits. Clear and unmistakable error (CUE) is a legal term relating to the finality of prior, final adjudications. 38 C.F.R. § 3.105(a) (1995). See also Russell v. Principi, 3 Vet.App. 310, 313 (1992). Given that the appellant’s earlier effective date claim comes to the Board on direct appeal from the disputed December 1994 RO decision, which is not final, the Board finds that the appellant’s use of the CUE term is inappropriate in this instance. A specific claim in the form prescribed by the Secretary of the VA must be filed in order for death benefits to be paid to any individual. 38 U.S.C.A. § 5101(a) (West 1991); 38 C.F.R. § 3.152(a) (1995). The appellant filed the prescribed form on November 28, 1994, which was more than forty-five days after the veteran’s death. Based upon the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim for an effective date prior to November 28, 1994, for the grant of improved death pension benefits. 38 U.S.C.A. §§ 3501(a)(1)(B), 5101(a), 5110(d)(2), 5111(a), 7722; 38 C.F.R. §§ 3.31, 3.105(a), 3.152(a), 3.400(c)(3)(ii). ORDER Entitlement to an effective date prior to November 28, 1994, for the grant of death pension benefits is denied. JAMES R. ANTHONY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), 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, 102 Stat. 4105, 4122 (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. - 2 -