Citation Nr: 9900190	
Decision Date: 01/06/99    Archive Date: 01/12/99

DOCKET NO.  98-05 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort 
Harrison, Montana


THE ISSUES

1.  Entitlement to an effective date prior to October 1, 
1996, for an award of payment of Dependency and Indemnity 
Compensation (DIC) benefits, based on the grant of service 
connection for the cause of the veteran’s death under the 
provisions of 38 U.S.C.A. § 1151.

2.  Whether the full amount of $150,000 received in a 
settlement under the Federal Tort Claims Act should be offset 
against DIC benefits payable to the appellant under 38 
U.S.C.A. § 1151.


REPRESENTATION

Appellant represented by:	Craig W. Holt, Attorney at Law

WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Associate Counsel


INTRODUCTION

The veteran served on active duty from April 1956 to June 
1959.  He died on March [redacted], 1993.  The appellant 
is the veteran’s widow.

This matter comes before the Board of Veterans’ Appeals (the 
Board) from a December 1996 rating determination by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
which the RO granted DIC benefits for the appellant under the 
provisions of 38 U.S.C.A. § 1151 and assigned an effective 
date of October 1, 1996.

This matter is also before the Board on appeal of a January 
1997 administrative determination in which the appellant was 
advised that although she had been awarded DIC benefits 
effective from October 1, 1996, she was unable to receive 
those benefits until $150,000 received as a settlement 
payment under the Federal Tort Claims Act had been recouped.  



CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that DIC benefits should have been 
granted prior to October 1996.  She maintains that an 
informal claim was filed in June 1993 prior to the formal 
claim for DIC benefits which was filed in September 1996.  
She further argues that she was not furnished the proper 
forms with which to file a formal claim for DIC benefits 
following the submission of an informal claim for benefits 
filed in June 1993. 


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), 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 supports the assignment of an effective date of 
March 1, 1993 for the grant of entitlement to DIC benefit 
payments.

As discussed more fully below, the issue of whether the full 
amount of $150,000 received in a settlement under the Federal 
Tort Claims Act should be offset against DIC benefits payable 
to the appellant under 38 U.S.C.A. § 1151 is being remanded 
to the RO in accordance with considerations of due process. 


FINDINGS OF FACT

1.  The veteran died on March [redacted], 1993.

2.  The appellant filed a VA Form 90-2008, Application for 
United States Flag for Burial Purposes, in March 1993.

3.  On June 25, 1993, the RO received correspondence from the 
appellant requesting that the VA determine whether she was 
eligible for readjudication of a prior claim of entitlement 
to service connection for a disability claimed as a result of 
ionizing radiation or for death benefits claimed as a result 
of the veteran’s exposure to ionizing radiation during 
service.

4.  In correspondence from the RO dated in June 1993, the 
appellant was informed that she was not eligible for 
readjudication of the issue of entitlement to service 
connection for a disability claimed as a result of ionizing 
radiation (for purposes of accrued benefits).  However, she 
was advised that the June 1993 correspondence was accepted as 
an informal claim for death benefits, and that she would soon 
receive correspondence from the VA which would include a 
formal application for benefits.  

5.  In March 1996, the RO sent correspondence to the 
appellant advising her that she might be eligible for DIC 
and/or death pension benefits, and provided her with a formal 
application form for such benefits.

6.  The appellant filed a formal claim for DIC benefits on 
September 12, 1996.

7.  Entitlement to DIC benefits was granted by the RO in a 
December 1996 rating action, with payment commencing October 
1, 1996, the first day of the month following the receipt of 
the formal claim for DIC benefits.


CONCLUSION OF LAW

The criteria for an effective date of March 1, 1993 for the 
award of DIC benefits have been met.  38 U.S.C.A. §§ 5107, 
5110 (West 1991); 38 C.F.R. §§ 3.155, 3.400 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the appellant’s claim is well 
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 
1991).  That is, she has presented a claim which is not 
implausible.  Further, after reviewing the record, the Board 
is satisfied that all the relevant facts have been fully 
developed and that the case is properly in appellate status.

Factual Background

The evidence shows that the veteran died on March [redacted], 
1993.  At the time of his death, the veteran was service 
connected for inguinal hernia.  The veteran’s service medical 
records reflected that he was participated in atmospheric 
nuclear testing during service.  The record revealed that in 
December 1986, the veteran had filed a claim for entitlement 
to service connection for nerve damage claimed as a result of 
exposure to radiation during service.  That claim was denied 
in a rating action of June 1987 and was not appealed.  
Subsequently, in correspondence from the RO dated in June and 
July 1992, the veteran was advised that he might be eligible 
for readjudication of a claim for disability benefits based 
upon exposure to radiation due to a change in the law.  
However, no response to that correspondence was received from 
the veteran.


In March 1993, the appellant filed a VA Form 90-2008, 
Application for United States Flag for Burial Purposes.  In 
June 1993, the appellant submitted correspondence to the RO 
requesting that the VA determine whether she was eligible for 
readjudication of the claim for entitlement to service 
connection for a disability (for purposes of accrued 
benefits) or for the veteran’s death based upon exposure to 
radiation sustained during service.

In June 1993, the RO sent correspondence to the appellant 
advising her that she was not eligible for readjudication of 
a claim for entitlement to service connection for a 
disability (for purposes of accrued benefits) based upon 
exposure to radiation sustained during service.  However, she 
was advised that her June 1993 correspondence had been 
accepted as an informal claim for death benefits, and that 
she would soon receive another letter from VA with a formal 
application form.  It appears from the evidence of record, 
however, that this form was not sent.

In March 1996, the RO sent correspondence to the appellant 
advising her that she was eligible to apply for DIC and/or 
death pension benefits.  The correspondence reflected that a 
VA Form 21-534 (Application for Dependency and Indemnity 
Compensation or Death Pension by a Widow or Child) was sent 
to the appellant as an enclosure to the RO’s letter. 

On September 12, 1996, the RO received a VA Form 21-534, the 
appellant’s formal claim for DIC benefits.  By rating action 
of December 1996, the RO granted entitlement to DIC benefits 
under the provisions of 38 U.S.C.A. § 1151.  The appellant 
was notified of the grant in correspondence from the RO dated 
in January 1997, and that an effective date of October 1, 
1996, for the award of DIC benefits had been assigned.  The 
appellant appealed the assigned effective date. 


In July 1998, the appellant presented testimony at a Board 
hearing.  She testified that she initially contacted the VA 
shortly after the veteran’s death to inquire as to whether 
she was entitled to any benefits as a result of his death, 
and was told that she was not.  She indicated that the next 
the next time she heard anything more about entitlement to 
DIC benefits was in March 1996.

Pertinent Law and Regulations

The surviving spouse of a veteran who has died from a 
service-connected disability after December 31, 1956, may be 
entitled to DIC.  38 U.S.C. §§ 1310, 1311.  The veteran’s 
death will be considered service connected where a service-
connected disability was either the principal or a 
contributory cause of death.  38 C.F.R. § 3.312(a) (1998).  
Under the provisions of 38 U.S.C.A. § 1151, where injury or 
death occurs as a result of having submitted to VA 
hospitalization, and not the result of the veteran’s own 
willful misconduct, compensation will be awarded for such 
disability or death as if it were service-connected. 

If a claimant files an application for DIC benefits within 
one year after the veteran’s death, then the effective date 
is the first day of the month in which the veteran died. 38 
U.S.C. § 5110(d)(1).  If no such application is filed or 
could be construed to have been filed within one year after 
the veteran’s death, the relevant effective date provision is 
38 U.S.C. § 5110(a), which states: "Unless specifically 
provided otherwise in this chapter, the effective date of an 
award based on . . . a claim for . . . dependency and 
indemnity compensation or pension shall be fixed in 
accordance with the facts found, but shall not be earlier 
than the date of receipt of application therefor."


Regardless of VA regulations concerning effective dates of 
awards, payment of monetary benefits based on original claim 
for DIC may not be made for any period prior to the first day 
of the calendar month following the month in which the award 
became effective.  38 C.F.R. § 3.31 (1998).

Upon receipt of notice of death of a veteran, it is mandated 
that the appropriate application form will be forwarded for 
execution by or on behalf of any dependent who has apparent 
entitlement to pension, compensation, or dependency and 
indemnity compensation.  38 U.S.C.A. § 7722, 38 C.F.R. § 
3.150(b).

Any communication or action indicating an intent to apply for 
one or more benefits may be considered as an informal claim.  
Such informal claim must identify the benefit sought.  Upon 
receipt of an informal claim, if a formal claim has not been 
filed, an application form will be forwarded to the claimant 
for execution.  If received within one year from the date it 
was sent to the claimant, it will be considered filed as of 
the date of receipt of the informal claim.  38 C.F.R. § 3.155 
(1998).

Analysis

The appellant and her attorney maintain that an effective 
date prior to October 1, 1996 is warranted for the grant of 
DIC benefits.  In support of this claim the appellant and her 
representative have argued that an informal claim for 
benefits was filed prior to that time.  Specifically, they 
maintain that the correspondence received from the appellant 
in June 1993 requesting that the VA determine whether she was 
eligible for readjudication of the claim for entitlement to 
service connection for a disability (for purposes of accrued 
benefits) or for the veteran’s death based upon exposure to 
radiation sustained during service, represented an informal 
claim for DIC benefits and should have been acted upon by the 
RO.  The Board also construes by the appellant’s testimony 
that it is argued that the VA did not assist the appellant by 
advising her that she was eligible for VA benefits following 
the veteran’s death, of which the VA was aware by virtue of 
her filing an application for burial benefits in March 1993.  

Initially, the Board points out that an application for 
burial benefits may not be construed as either a formal or 
informal application for DIC benefits.  The Court of Veterans 
Appeals (Court) in Shields v. Brown, 8 Vet. App. 346 (1995) 
held that an application for burial benefits was not in and 
of itself an application for DIC benefits.  In Shields, the 
Court indicated that an application for burial benefits “may 
not be construed as an informal claim for DIC benefits” 
pursuant to 38 C.F.R. § 3.155, because the appellant did not 
identify DIC benefits as among the benefits being sought.  
Similarly, in this case when the appellant filed the March 
1993 Application for United States Flag for Burial Purposes, 
she did not claim that the cause of the veteran’s death was 
due to service, and did not otherwise indicate that she 
intended to file a claim of entitlement to DIC benefits.  In 
the Shields decision, the Court also referenced one of its 
earlier decisions in which it was held that an application 
for burial benefits should not be deemed an application for 
DIC benefits, Herzog v. Derwinski, 2 Vet. App. 502, 503 
(1992).  In view of the legal precedent, the appellant’s 
March 1993 Application for United States Flag for Burial 
Purposes is not deemed to constitute an informal claim for 
DIC benefits.  See also Stewart v. Brown, 10 Vet. App. 15 
(1997)

The appellant further argues that her June 1993 
correspondence constituted an informal claim for effective-
date purposes.  The regulation which governs informal claims, 
38 C.F.R. § 3.155 (1998), provides that  (a) Any 
communication or action, indicating an intent to apply for 
one or more benefits under the laws administered by [VA], 
from a claimant . . . may be considered an informal claim.  
Such informal claim must identify the benefit sought.  Upon 
receipt of an informal claim, if a formal claim has not been 
filed, an application form will be forwarded to the claimant 
for execution.  If received within 1 year from the date it 
was sent to the claimant, it will be considered filed as of 
the date of receipt of the informal claim.  See Quarles v. 
Derwinski, 3 Vet. App. 129, 136 (1992); Crawford v. Brown, 5 
Vet. App. 33, 35 (1993); see also Servello v. Derwinski, 3 
Vet. App. 196, 199 (1992) (regulation does not require 
claimant to identify specifically benefit being sought; 
correct query was whether any communication or action by 
claimant evidenced a belief by the claimant that he or she 
was entitled to benefits).

The June 1993 correspondence from the appellant to the RO did 
indicate an intent on the part of the appellant to pursue a 
claim of entitlement to service connection for VA death 
benefits.  Moreover, the RO informed the appellant in June 
1993 that her June 1993 correspondence was considered to be 
an informal claim for VA death benefits, and that she would 
soon be receiving correspondence from the VA in which a 
formal application would be enclosed.  Accordingly, the Board 
finds that the June 1993 correspondence from the RO to the 
appellant did constitute an informal claim for DIC benefits.

Under the provisions of 38 C.F.R. § 3.155, upon receipt of an 
informal claim, if a formal claim has not been filed, an 
application form will be forwarded to the claimant for 
execution.  If received within 1 year from the date it was 
sent to the claimant, it will be considered filed as of the 
date of receipt of the informal claim.  38 C.F.R. § 3.155(a) 
(1992).  In this case an application form was not sent from 
the RO to the appellant until March 1996, almost three years 
after the informal claim was filed.  However, even so, the 
appellant did file a formal claim for DIC benefits in 
September 1996, within a year from the date that the formal 
application form was sent to her, in compliance with the 
provisions of 38 C.F.R. § 3.155.  accordingly, under 
38 C.F.R. § 3.155, the date of receipt of the informal claim, 
June 25, 1993, is also considered the date of the filing of a 
formal claim.  

In Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992), and 
Servello v. Derwinski, 3 Vet. App. 196, 200 (1992), the Court 
held that "the one-year filing period for such applications 
did not begin to run" when VA did not forward the claimant a 
formal application form once his informal claim had been 
received and that, therefore, the date on which the informal 
claim was received "must be accepted as the date of his 
‘claim’ or ‘application’ for purposes of determining an 
effective date . . . ." Servello, 3 Vet. App. at 200.  
Accordingly, inasmuch as the RO did not send the appellant a 
formal application form until nearly three years after the 
submission of her informal claim, the date of receipt of the 
informal claim, June 25, 1993, must be accepted as the date 
of the claim for purposes of determining an effective date.

The applicable regulation states that if a claimant files an 
application for DIC benefits within one year after the 
veteran’s death, then the effective date is the first day of 
the month in which the veteran died.  38 U.S.C. § 5110(d)(1); 
38 C.F.R. § 3.400(c)(2).  In this case the veteran died in 
March 1993; a claim for DIC benefits was filed on June 25, 
1993, within one year after the veteran death.  Accordingly, 
the proper effective date for the grant of DIC benefits is 
March 1, 1993, and the appeal is granted to that extent.  
There is no regulatory provision which would provide an 
earlier effective date in this case.  


ORDER

An effective date of March 1, 1993 for the grant of 
entitlement to DIC benefits is granted.


REMAND

The appellant has argued that the full amount of $150,000 
received in a settlement under the Federal Tort Claims Act 
should not be offset against DIC benefits payable to the 
appellant under 38 U.S.C.A. § 1151 because that award was 
significantly diminished because the appellant was required 
to pay attorney’s fees and debts of her bankruptcy.

A brief review of the facts of this case reflects that in 
January 1995 the appellant filed a claim for damage injury or 
death brought under the provisions of the Federal Tort Claims 
Act.  Therein, the appellant claimed that the veteran had 
been examined on March [redacted], 1993 at a VA clinic in 
Billings, Montana, apparently due to cardiovascular problems.  
She indicated that he was sent home without treatment, and that 
the next day, March [redacted], 1993, the veteran suffered full 
cardiopulmonary arrest and died.  She stated that the failure 
of the VA to diagnose and treat the veteran at that time 
caused his death.  The death certificate reflected that the 
veteran died on March [redacted], 1993, as a result of sudden 
cardiac event, due to atherosclerosis.

In January 1996, a federal tort claim settlement in the 
amount of $150,000 was agreed upon by the appellant and VA.  
In September 1996, the appellant filed a formal claim for DIC 
benefits based upon the veteran’s death.   By rating action 
of December 1996, the RO granted entitlement to DIC under the 
provisions of 38 U.S.C.A. § 1151.  

In correspondence from the RO dated January 1997, the 
appellant was informed that although she had been awarded DIC 
benefits, due to her receipt of a tort claim settlement award 
in the amount of $150,000 she was unable to receive such 
benefits until the entire amount of the tort settlement award 
had been recouped.  In March 1997, the appellant’s 
representative argued that although the appellant had been 
awarded a $150,000 settlement, of that amount she had 
incurred $30,000 in attorney’s fees, and fees and debts 
related to bankruptcy which the appellant was forced to 
declare in 1993, resulting in a net amount to the appellant 
of only $90,842.54.  It was argued that the amount of the 
tort settlement award which should be offset is $90,842.45, 
not the entire settlement amount of $150,000.   


The RO denied the appellant’s recoupment claim in August 
1997, applying the provisions of 38 C.F.R. § 3.800.  It is 
provided under 38 C.F.R. § 3.800(a)(2) that where any person 
is awarded a judgment on or after December 1, 1962, against 
the United States in a civil action brought pursuant to 28 
U.S.C. 1346(b), or enters into a settlement or compromise on 
or after December 1, 1962, under 28 U.S.C. 2672 or 2677, by 
reason of disability within the purview of this section 
[i.e., 38 U.S.C.A. § 1151], no compensation shall be paid to 
such person for any month beginning after the date such 
settlement, or compromise on account of any such disability 
becomes final until the total amount of benefits which would 
be paid except for this provision equals the total amount 
included in such settlement, or compromise.  

However, effective October 1, 1997, an amended regulation 
governing the issue of offsets of benefits awarded under the 
provisions of 38 U.S.C.A. § 1151 was promulgated.  The new 
regulation provides as follows:
(a) Claims subject to this section.  This section 
applies to claims received by VA on or after October 1, 
1997.  This includes original claims and claims to 
reopen, revise, reconsider, or otherwise readjudicate a 
previous claim for benefits under 38 U.S.C. 1151 or its 
predecessors.

(b) Offset of veterans’ awards of compensation.  If a 
veteran’s disability is the basis of a judgment under 28 
U.S.C. 1346(b) awarded, or a settlement or compromise 
under 28 U.S.C. 2672 or 2677 entered, on or after 
December 1, 1962, the amount to be offset under 38 
U.S.C.  1151(b) from any compensation awarded under 38 
U.S.C. 1151(a) is the entire amount of the veteran’s 
share of the judgment, settlement, or compromise, 
including the veteran’s proportional share of attorney 
fees.

(c) Offset of survivors’ awards of dependency and 
indemnity compensation.  If a veteran’s death is the 
basis of a judgment under 28 U.S.C. 1346(b) awarded, or 
a settlement or compromise under 28 U.S.C.  2672 or 2677 
entered, on or after December 1, 1962, the amount to be 
offset under 38 U.S.C. 1151(b) from any dependency and 
indemnity compensation awarded under 38 U.S.C. 1151(a) 
to a survivor is only the amount of the judgment, 
settlement, or compromise representing damages for the 
veteran’s death the survivor receives in an individual 
capacity or as distribution from the decedent veteran’s 
estate of sums included in the judgment, settlement, or 
compromise to compensate for harm suffered by the 
survivor, plus the survivor’s proportional share of 
attorney fees.

(d)	Offset of structured settlements.  This paragraph 
applies if a veteran’s disability or death is the basis 
of a structured settlement or structured compromise 
under 28 U.S.C. 2672 or 2677 entered on or after 
December 1, 1962.
(1)	The amount to be offset. The amount to be offset under 
38 U.S.C. 1151(b) from benefits awarded under 38 U.S.C. 
1151(a) is the veteran’s or survivor’s proportional share of 
the cost of the settlement or compromise to the United 
States, including the veteran’s or survivor’s proportional 
share of attorney fees.
(2)	When the offset begins.  The offset of benefits awarded 
under 38  U.S.C. 1151(a) begins the first month after the 
structured settlement or structured compromise has become 
final that such benefits would otherwise be paid.
38 C.F.R. § 3.362 (1997)

The Board notes that where a law or regulation changes after 
a claim has been filed or reopened, but before the 
administrative or judicial appeal process has been concluded, 
the version most favorable to an appellant applies unless 
Congress provided otherwise or permitted the Secretary to do 
otherwise and the Secretary does so.  Marcoux v. Brown, 9 
Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 
(1991).

In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court of 
Veterans Appeals held that before the Board addresses in a 
decision a question that has not been addressed by the RO, it 
must consider whether the claimant has been given adequate 
notice of the need to submit evidence or argument, an 
opportunity to submit such evidence or argument, an 
opportunity to address the question at a hearing, and whether 
the claimant has been prejudiced by being denied those 
opportunities.  In this case, neither the appellant nor her 
representative have been provided an opportunity to review 
the new regulation or to provide additional argument for the 
record in accordance with the new regulation.  Moreover, the 
RO has not had the opportunity to adjudicate the claim under 
both the revised and former applicable regulations, applying 
the regulation which is more favorable to the claim.  
Consequently, in accordance with the aforementioned 
considerations of due process this claim must be remanded.

To ensure full compliance with due process requirements, the 
case is REMANDED to the RO for the following development:

1.  The RO should inform the appellant 
and her attorney that prior to 
readjudication of the claim they are 
invited to submit additional argument or 
evidence in light of the potential 
relevance of the revised VA regulations 
pertaining to this claim.  See Quarles v. 
Derwinski, 3 Vet. App. 129, 141 (1992).  
The appellant should be given a 
reasonable amount of time to submit such 
argument and/or evidence.

2.  The RO should then review the record 
and adjudicate the issue on appeal 
applying both the former provisions of 
38 C.F.R. § 3.800 (1997) and the revised 
provisions provided under 38 C.F.R. 
§ 3.362 (1998) to the claim.  If deemed 
necessary in light of the potential 
applicability of 38 C.F.R. § 3.362 
(1998), the RO should obtain an opinion 
from the VA regional counsel concerning 
the amounts which are properly offset 
against any dependency and indemnity 
compensation award, and if obtained that 
opinion should be associated with the 
claims folder.  Thereafter, a rating 
determination should be made utilizing 
the regulation which is most favorable to 
the appellant. 

If any benefit sought on appeal remains denied, the appellant 
and her representative should be furnished a supplemental 
statement of the case and given a reasonable opportunity to 
respond.  Thereafter, the case should be returned to the 
Board, if in order.  The Board intimates no opinion as to the 
ultimate outcome of this case.  

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the United States Court of 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).



In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.



		
	Barry F. Bohan
	Member, Board of Veterans’ Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1998), 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 
that appears on the face of this decision constitutes the 
date of mailing and the copy of this decision that you have 
received is your notice of the action taken on your appeal by 
the Board of Veterans’ Appeals.  Appellate rights do not 
attach to those issues addressed in the remand portion of the 
Board’s decision, because a remand is in the nature of a 
preliminary order and does not constitute a decision of the 
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) 
(1997).
  As indicated previously in this decision, an informal claim for death benefits had been filed in June 1993.
  The Board observes that it appears that to some extent the appellant is raising what amounts to a theory of 
relief couched in equity.  The Board, however, is bound by the law in such matters and is without authority to 
grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 
(1994).  The Board further observes that "no equities, no matter how compelling, can create a right to 
payment out of the United States Treasury which has not been provided for by Congress."  Smith (Edward 
F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 
U.S. 414, 426 (1990).  
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