BVA9507663 DOCKET NO. 93-02 940 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to an effective date prior to January 22, 1990, for service connection for large cell (non-Hodgkin's) lymphoma, for accrued benefit purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran had active military service from June 1969 to August 1979. The veteran died on November [redacted] 1991, and the cause of death as corrected on his death certificate was non-Hodgkin's lymphoma. The appellant is the surviving spouse of the veteran. Service connection for the cause of the veteran's death has been established. This appeal arises from a February 1992 rating decision of the St. Paul, Minnesota, regional office and insurance center (hereinafter, RO) that granted dependency and indemnity compensation (DIC). The appellant seeks accrued benefits based upon an effective date prior to January 22, 1990, for service connection of the veteran's large cell (non- Hodgkin's) lymphoma. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the effective date of 38 C.F.R. § 3.313 (1994) is October 1990, and that, pursuant to 38 C.F.R. § 3.114, she should be entitled to accrued benefits based on establishing a date of entitlement to service connection earlier than the date on which the veteran applied for service connection for large cell lymphoma. In the alternative, she contends that the provisions of 38 U.S.C.A. § 5110(b)(2) are for application and would result in an earlier effective date. 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 appellant has no valid claim of entitlement to accrued benefits under the law. FINDINGS OF FACT 1. The veteran filed a claim for service connection of large cell lymphoma on January 22, 1990. 2. Service connection, with a disability evaluation of 100 percent, was granted in a rating decision entered in December 1990, with an effective date of January 22, 1990. 3. In May l991, a notice of disagreement with the effective date of the grant of service connection was filed on behalf of the veteran. 4. A statement of the case was forwarded to the veteran by letter of May l991. 5. The veteran died on November [redacted] 1991, of non-Hodgkin's lymphoma. 6. The appellant filed a claim for dependency and indemnity compensation (DIC) and accrued benefits in December 1991. 7. Entitlement to DIC benefits was granted by rating decision in February 1992. CONCLUSION OF LAW Entitlement to an effective date prior to January 22, 1990 for service connection for large cell (non-Hodgkin's) lymphoma, for accrued benefit purposes, is not established. 38 U.S.C.A. §§ 5110(b)(2), 5121 (West 1991); 38 C.F.R. § 3.114, 3.313(b), 3.500(g), 3.1000(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran died of a cause adjudicated service connected (large cell, or non-Hodgkin's, lymphoma) on November [redacted] 1991. The veteran had been awarded service connected compensation effective January 22, 1990, the date of his application for such benefits. His widow, the appellant, sought accrued benefits based on a theory that the effective date of the veteran's award of service connected compensation benefits should have been one year earlier than the date on which he filed his application for benefits. It is noted that, prior to his death, the veteran had filed a Notice of Disagreement with the effective date for the award of service connection for large cell lymphoma established by the December 5, 1990, rating decision. The appellant indicated in a statement dated December 23, 1991, and filed in March 1992, that she wished to continue the veteran's appeal regarding the effective date of that award. A veteran's claim does not survive his death, and a qualified survivor's claim is one for accrued benefits. Vda de Landicho v. Brown, 7 Vet.App. 42 (1994). Accrued benefits are limited to those "to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death . . . and due and unpaid for a period not to exceed one year . . . ." 38 U.S.C.A. § 5121(a) (West 1991). Basic entitlement to accrued benefits is further addressed in Department regulations, which provide that such benefits are limited to those "due and unpaid for a period not to exceed 1 year prior to the last date of entitlement as provided in § 3.500(g) . . . ." 38 C.F.R. § 3.1000(a) (1994). The last date of entitlement based on death as provided in 38 C.F.R. § 3.500(g) is the last day of the month before death. The veteran's surviving spouse, then, would be entitled to accrued benefits based on evidence in the veteran's file at the date of his death for a period not to exceed one year prior to the last day of the month before the veteran's death. The veteran died in November 1991, so any accrued benefits would be limited to those due and unpaid for a period of no more than one year before October 31, 1991. The veteran had been awarded 100 percent service connected disability effective January 22, 1990, more than one year prior to the last day of the month before his death. During his lifetime, the veteran had sought an earlier effective date, but that claim did not survive his death. The accrued benefits claimant is limited by law to benefits due and unpaid for one year prior to the month of the veteran's death, during which time the veteran was already in receipt of the benefits he had claimed. Although it is clear from the discussion above that there is no legal basis for a grant of accrued benefits, the appellant has constructed a theory of entitlement based on her contention that the veteran should have been granted an effective date for his award of service connection earlier than the date on which he filed his application. The appellant has advanced two theories to support her claim of entitlement. In the first, she cited 38 C.F.R. § 3.114, which provides, in pertinent part, Where . . . compensation . . . is awarded . . . pursuant to a liberalizing law or a liberalizing VA issue approved by the Secretary . . . , the effective date of such award . . . shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. In order to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. . . . (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. . . . (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (1994). In support of this theory, the appellant contends that the liberalizing law or VA issue on which the veteran's entitlement to service connection for large cell lymphoma was based (38 C.F.R. § 3.313(b)) was October 1990. This interpretation, if correct, would be of no assistance to the appellant, since 38 C.F.R. § 3.114 provides that the effective date of an award pursuant to a liberalizing VA issue shall not be earlier than the effective date of the liberalizing issue. If the effective date of 38 C.F.R. § 3.313 were October 1990, the veteran could not have been awarded service connection for his non-Hodgkin's lymphoma effective January 1990. However, the effective date of § 3.313 is not October 1990. The appellant's construction of the regulation's effective date appears to be based upon the fact that the final regulation was published in the Federal Register in October 1990. The construction has no legal basis. Although the final regulation in question was published in the Federal Register on October 26, 1990, the effective date was specifically noted in the Federal Register to be August 5, 1964. Finally, the question of the applicability of 38 C.F.R. § 3.114(a) in cases of claims under 38 C.F.R. § 3.313 has been specifically addressed in a precedent opinion of the General Counsel of the Department of Veterans Affairs. The General Counsel held that An effective date for service connection of non-Hodgkin's lymphoma under 38 C.F.R. 3.313 may generally be based on the date of receipt by the Department of Veterans Affairs of an original claim for that benefit filed on or after August 5, 1964, regardless of whether the claim had previously been denied, if the claimant was otherwise eligible on the date of claim. As a practical matter, the provisions of 38 U.S.C. 5110(g) and 38 C.F.R. 3.114(a) permitting payment of retroactive benefits for periods prior to the date of receipt of a claim under certain circumstances could not be applicable in determining the effective date of an award of service connection under § 3.313 because no one could have met all eligibility requirements for benefits under § 3.313 on its effective date of August 5, 1964. O.G.C. Precedent 5-94, 59 Fed. Reg. 27308 (1994). There is, therefore, no support in applicable law and regulations for the first theory advanced by appellant. The second theory on which the appellant has based her claim is 38 U.S.C.A. § 5110(b)(2). That section provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred if application is received within one year from such date. The veteran had not filed a claim for increased compensation, but a claim for service connection. Service connection was awarded at a 100 percent disability evaluation effective the date of the veteran's claim. There was no claim for increased compensation on which to base a claim under § 5110(b)(2). There was an examination report for special compensation based on housebound status or permanent need for aid and attendance in the file on the date of the veteran's death. This form, completed by [redacted] at the VA medical center in Minneapolis, Minnesota, indicates that the veteran was examined on November 13, 1991, and found to require the daily personal health care services of a skilled provider. It indicated that the veteran was in bed approximately 24 hours per day. The form was received by the RO on November 20, 1991, five days before the veteran's death. Under 38 U.S.C.A. § 1114(s), a special rate of compensation is payable for a veteran who has a service-connected disability rated as total and is permanently housebound by reason of that disability. Under the law, a "permanently housebound" condition is considered to exist if the veteran is substantially confined to his house or ward or clinical areas. A claim for special monthly compensation is a claim for a discrete benefit rather than a claim for an increased rating. The effective date of an award based on an original claim or reopened claim shall not be earlier than the date of receipt of the application. 38 U.S.C.A. § 5110(a) (West 1991). Treating the examination report as a claim for special monthly compensation based on 100 percent service-connected disability plus permanently housebound status, the earliest effective date that might be granted was November 20, 1991, the date the report was received in the RO. Since accrued benefits, as discussed above, are limited to those due and unpaid for one year prior to the last day of the month before the veteran's death, a claim for special compensation based on housebound status for the final days of the veteran's life, when those final days fall outside the eligibility period, would not, as a matter of law, give rise to a claim for accrued benefits. In this case, the facts are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be terminated. See Sabonis v. Brown, 6 Vet.App. 426 (1994). ORDER The claim of entitlement to accrued benefits based upon an earlier effective date of the grant of service connection for large cell lymphoma is dismissed. I. S. SHERMAN 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.