BVA9506026 DOCKET NO. 91-47 004 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than September 1, 1990, for the grant of dependency and indemnity compensation benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran, who had active service from May 1951 to May 1953, died in November 1987. This appeal arises from a March 1991 determination granting the appellant dependency and indemnity compensation benefits, effective September 1, 1990. The Board of Veterans' Appeals (Board) remanded this claim in April 1992 to further develop the record. The case was returned to the Board in February 1995. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that, as there is sufficient evidence of record to show that she was still married to the veteran at the time of his death, the grant of dependency and indemnity compensation benefits should be effective from the date of the veteran's death. She asserts that the death certificate erroneously reported that the veteran was divorced and that she was told by a details officer at the Department of Veterans Affairs (VA) Medical Center, Buffalo, that this was done because her step-daughter had indicated that the veteran was divorced. She further asserts that she was advised by the VA, when she called, that she was not entitled to benefits as she was divorced and was told that the veteran's attorney had already applied for and received the burial benefits. She avers that she then filed with the state for a corrected certificate of death and was advised by the VA in August 1990 that the correction had been made. She further contends that, as the veteran was being paid as a married veteran at the time of his death, the VA should have sent her the form to file for dependency and indemnity compensation benefits when she contacted the VA. She finally asserts that the circumstances relating to the erroneous death certificate were beyond her control and, as there was no neglect on her part for being unable to file the claim for dependency and indemnity compensation benefits, the grant of dependency and indemnity compensation benefits should be effective from the date of the veteran's death. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 earlier than September 1, 1990, for the grant of dependency and indemnity compensation benefits. FINDINGS OF FACT 1. All available, relevant evidence necessary for an equitable disposition of the appellant's appeal has been requested and obtained by the originating agency. 2. In August 1990, the appellant's initial claim for VA death benefits as the veteran's widow was received. 3. In March 1991, the VA granted the appellant's claim for dependency and indemnity compensation, effective September 1, 1990. CONCLUSION OF LAW An effective date earlier than September 1, 1990, for dependency and indemnity compensation benefits is not for assignment. 38 U.S.C.A. §§ 5107, 5110(a) (West 1991); 38 C.F.R. §§ 3.31, 3.155, 3.160, 3.400(c) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking an earlier effective date for her grant of dependency and indemnity compensation benefits. The Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, she has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The appellant contends that the effective date for her dependency and indemnity compensation should be the date of the veteran's death, as the evidence shows that she was married to him at the time of his death. The appellant asserts that, as the veteran was being paid as a married veteran at the time of his death, the VA should have sent her the form to file for dependency and indemnity compensation benefits when she contacted the VA. The originating agency has determined that the appellant submitted her initial claim to the VA, in August 1990, and assigned an effective date of September 1, 1990, for the grant of dependency and indemnity compensation benefits. Under the provisions of 38 U.S.C.A. § 5110, the effective date of an award of dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which death occurred. Otherwise, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 C.F.R. § 3.155 states, in pertinent part, that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the 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. In the Board's April 1992 remand decision. it was requested that the regional office review the veteran's medical records and administrative file to determine whether there was any report of contact (and any informal claim for benefits) contained in those records. In October 1994, the regional office was advised that the veteran's records could not be located at the records repository to which they had been retired. Thus, the appellant's appeal must be decided on the basis of the evidence which is of record. A certificate reflects that the appellant and veteran were married in December 1969. In a December 1983 statement to the VA, the appellant requested an apportionment of the veteran's disability compensation for herself; she stated that the two children remained in the veteran's custody. The appellant stated further that she and the veteran had been separated since May 1983 but that this was not a legal separation. In an October 1983 statement acknowledging the receipt of payment of back support and maintenance from the veteran, the appellant also stated that "our divorce will be of an un-contested nature." A copy of a death certificate, made part of the record in December 1987, reflects that the veteran died at the VA Medical Center, Buffalo, New York, in November 1987. Entries on the certificate are to the effect the veteran was divorced and that information had been obtained from VA Medical Center records. A VA Form 10-7132, Status Change, dated in November 1987, states that the veteran's next of kin was a son, Christopher. An invoice of the Roberts Funeral Home dated in November 1987 indicates that it was the veteran's son, Chris, who authorized the funeral establishment to obtain custody of the veteran's remains. In March 1988, the VA received an application for burial benefits made by the Roberts Funeral Home. On the application, it was indicated that the veteran's marital status had been divorced. The application was also signed by Guy Van Baalen, an attorney and executor of the veteran's estate, certifying the correctness of the information entered on the application. In August 1990, the VA received the appellant's application for VA death benefits. On the form, she checked the negative box in response to the question of whether she had filed a claim previously with the VA. Accompanying the application were copies of various documents. These include a copy of the veteran's death certificate which bears certain typewritten additions and is designated a "correct copy." The revised death certificate reflects that the veteran's marital status was married and that the appellant was his surviving spouse. Also submitted with the August 1990 application was a Certificate of Filing signed by the County Clerk of Erie County, New York, certifying that a search of records for the period from January 1985 to December 1987 revealed that no divorce of the appellant and the veteran had been filed. Also submitted with the August 1990 application was a copy of a handwritten letter from the appellant dated in October 1989 and addressed to the VA Medical Center at Buffalo. The letter, which bears the salutation "To whom it may concern", states that the appellant was writing "in regard of a certificate of death issued by you." After listing the veteran's identifying data, the letter continues as follows: I was with him at the time of his death and although we were legally separated, I was not divorced at that time. [A]s his legal wife, I signed numberous (sic) papers for V.A. Buffalo. Your papers will prove that he was admitted on 10-18-87 seperated (sic). How could he have died divorced on 11-21-87? Is this a typographial (sic) error? If you do not have a copy of a divorce decree to substantuate (sic) this? If not would you please send m[e] 6 (six) certified copies of the corrected version of the death certificate? In a statement submitted in December 1990, the appellant stated that she and the veteran had entered into a divorce proceeding in October 1986 but that the veteran's attorney, Guy Van Baalen, had not submitted the order within 60 days from the time it was obtained and that the proceedings had thus been abandoned in accordance with New York law. In a statement dated in June 1991, the appellant stated, in pertinent part, the following: At the time of my husbands death at V.A. Hospital Buffalo on Nov. 21 87. I was informed that [the veteran] had admitted himself Sept Oct 14, 1987 (seperated) (sic) and therefore it was necessary for me to sign papers releasing his body to Roberts Funeral Home. I signed the paper. In her substantive appeal dated in September 1991, the appellant stated in pertinent part that she had called the VA in Buffalo after the veteran's death and inquired about any dependency and indemnity benefits that she might be entitled to. She had been told that because she had divorced the veteran, she was not entitled to any VA benefits. When she tried to explain that there were no divorce papers and that she was not divorced, she was told that if and when she could get the death certificate changed in her favor, she should call again. As noted above, the evidence of record includes no application for VA death benefits by the appellant received by the VA prior to August 1990. On the August 1990 application for death benefits, the appellant indicated that she had not filed a claim previously with the VA. The appellant now contends, however, that she had contacted the VA Medical Center soon after the veteran's death inquiring as to her entitlement to VA dependency and indemnity compensation benefits and that she had been advised she was not entitled as the records reflected that the veteran was divorced. There is no documentation of record corroborating the appellant's assertions in this regard. Moreover, in assessing her credibility, the Board must note that there are certain material contradictions between various of the appellant's statements and other evidence of record. As noted above, when the appellant executed her August 1990 application for death benefits, she indicated that she had not filed a claim previously with the VA. Further, while she stated in June 1991 that, at the time of the veteran's death, she had had to sign the papers releasing the veteran's remains to the Roberts Funeral Home, the November 1987 Roberts Funeral Home invoice reflects that the veteran's son had been the one who authorized the release of the veteran's remains to the funeral home. While the appellant included a copy of what appears to be a letter dated in October 1989 and addressed to the VA Medical Center with her August 1990 application, the content of that document shows that she merely asserted that she and the veteran had not been divorced, inquired as to why the death certificate stated he had been divorced, and requested copies of any corrected certificate of death. No references were made to initiating a claim for VA death benefits. Further, the statement contains no hint of the appellant's having previously contacted the hospital regarding the same matter. Having considered the appellant's contentions along with all the evidence of record, the Board has concluded that her initial application for VA death benefits as the veteran's surviving spouse was received by the VA in August 1990 and that she is not entitled to dependency and indemnity compensation benefits earlier than September 1, 1990. 38 U.S.C.A. §§ 5107, 5110(a); 38 C.F.R. §§ 3.31, 3.155, 3.160, 3.400(c). Since the evidence is not in the appellant's favor or in balance, her claim must be denied. 38 U.S.C.A. § 5107. ORDER Entitlement to an effective date earlier than September 1, 1990, for the grant of dependency and indemnity compensation 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, ___ (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), 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.