BVA9500899 DOCKET NO. 93-09 982 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier that February 1, 1988, for an award and payment of death pension benefits. REPRESENTATION Gerald B. Golub, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from November 1942 to April 1944. He died in December 1973. At the time of death he was married to [redacted], and in an August 1987 Administrative Decision she was recognized as the spouse of the veteran. The appellant in this case, [redacted], is the guardian, and daughter, of [redacted]. This appeal arises from an April 1992 award of death pension benefits for [redacted], effective February 1, 1988 by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the RO erred in not finding that a claim for death benefits for [redacted] was actively pursued since [redacted] was admitted to a nursing home in 1979. It is claimed that the appellant's contacts with the Stark County Veterans Service Office were equivalent to contacts with VA for purposes of showing continuing prosecution of the claim. 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(s). 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 an effective date earlier than February 1, 1988, for an award and payment of death pension benefits for [redacted]. FINDINGS OF FACT 1. The claims for death benefits in February 1974, October 1978 and January 1985 were abandoned. 2. The appellant submitted evidence constituting a new claim for death pension benefits in January 1988, and this claim was actively pursued until the benefit was granted in April 1992. CONCLUSION OF LAW An effective date earlier that February 1, 1988, for an award and payment of death pension benefits in not warranted. 38 U.S.C.A. §§ 5107(a), 5110 (West 1991); 38 C.F.R. §§ 3.31, 3.158, 3.400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of the request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received, should the right to benefits be finally established, pension, compensation, or dependency and indemnity compensation based on such evidence shall commence not earlier that the date of filing the new claim. 38 C.F.R. § 3.158(a) (1993). The effective date of an evaluation and award of pension based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. 3.400 (1993). For awards based on claims 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 the claim is received within 45 days after the date of death; otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(c)(3). Regardless of VA regulations concerning effective dates of awards, and except as otherwise provided, payment of monetary benefits based on original, reopened, or increased awards of compensation, pension or dependency and indemnity compensation 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 (1993). In this case, [redacted] filed a claim for death benefits in April 1974. In May 1974 she was asked to provide additional information but did not respond and the claim was abandoned. [redacted] again filed a claim for death benefits in October 1978. She was again asked for additional information in January 1979. In June 1979 the appellant responded, indicating her guardianship for [redacted]. There was correspondence between the RO and the appellant, and in December 1980 the appellant was asked to provide additional pertinent information, including clarification of [redacted]'s marital status. There was no response within the 1 year time period and the claim was abandoned. A Statement of Income and Net Worth, construed to be a claim for death benefits for [redacted], was filed in January 1985. Again clarification was requested concerning the prior marriages for [redacted]. There were communications between the RO and the appellant up to the VA letter of November 1986, which requested documentation of termination of a reported marriage between [redacted] and a [redacted]. The next communication was received by the RO January 29, 1988. It consisted of a written statement by the appellant, a statement of knowledge by [redacted], notarized in September 1987, and date stamped by county office, January 25, "1987". This information was received over 1 year from the date of the requested information in November 1986. The appellant continually prosecuted the claim from January 1988 to the award of death pension benefits in April 1992. By letter dated in September 1991, the Statement of the Case dated in January 1993, information by the hearing officer in March 1993, and the hearing officer's decision of April 1993, the appellant was informed of the basis for the effective date of death pension benefits for [redacted]. Received as evidence in support of the appellant's claim, in June 1992, was a copy of a "log" chronologically listing the dates of contact and actions performed by a county service office in regard to death benefits for [redacted]. The chronology presented is consistent with the evidence in the claims folder. The appellant's contentions, and a discusssion of the county service office log, were outlined during the hearing in March 1993. Summary It has not been contended that the original claim in 1974 be the basis for any award. In essence, the appellant contends that she actively pursued a claim for death benefits for her mother from 1979 to the time of the award in 1992, and that the effective date should be the some time in 1979. First of all, erroneous information was filed concerning prior marriages for [redacted], and there was significant difficulty in separating out the facts, and documenting them. Next, the log of events from the county service office shows that there is approximately a 4 year break in communication between the appellant and the VA from 1980 to late 1984. The claims folder essentially reflects the same break. The appellant has not offered any evidence, parole or otherwise, to bridge this gap. Clearly there is no basis for an effective date based on the claim in 1978, or communications from the appellant in 1979. In regard to the appellant's new claim in January 1985, whatever her intent, there is a documented 1 year break between the request for information by the RO in November 1986, to her address of record, and the information received by the RO in January 1988. Even the county service office log submitted as evidence by the appellant supports that finding. The 1985 claim was abandoned, and the communications received in January 1988, construed liberally, constituted a new claim for death benefits for [redacted]. Since there was conflicting evidence regarding the widow's marital status at the time of the earlier claims, there was no basis for establishing that she was a qualified widow for VA pension purposes at any time prior to January 1988. The effective date of the award of death pension was the date of receipt of appellant's new claim, not the date of receipt of the 1978 and 1985 claims which were abandoned. The appellant has not established that she continually prosecuted a claim, which would entitle her to an effective date of award based on the 1978 claim or the new claim in January 1985, when she failed to respond within 1 year to the RO's request for information in November 1986. There is no basis for establishing an effective date for the award and payment of death pension benefits prior to the first of February 1988. 38 U.S.C.A § 5110(a); 38 C.F.R. §§ 3.31, 3.158, 3.400. ORDER An effective date prior to February 1, 1988, for an award and payment of death pension benefits is denied. THOMAS J. DANNAHER 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. (Continued on next page) 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.