BVA9508288 DOCKET NO. 93-15 152 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an effective date, prior to December 27, 1988, for payment of dependency and compensation benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1941 to October 1944. He was a prisoner of war of the Japanese Government from April 10 to April 13, 1944. He died in October 1944. His surviving spouse is the appellant. The claims file contains a decision by the Board of Veterans' Appeals (Board), dated June 4, 1991. The Board determined that revocation of the forfeiture of the appellant's dependency and indemnity compensation benefits should be granted administratively on the basis of a difference of opinion. 38 U.S.C.A. §§ 511(a), 7104(a) (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(b), 20.101(a) (1994). The Board noted that inasmuch as this allowance was a matter of administrative discretion, it was subject to all conditions relating thereto. Such conditions included those concerning effective dates of awards which precluded retroactive benefits in administrative grants of this nature. The Board determined that the effective date of an award resulting from this administrative allowance was December 27, 1988, the date of receipt of the appellant's attempt to reopen her claim. 38 C.F.R. § 3.400(h)(2) (1994). The current appeal arose from a January 1992 RO notification to the appellant that the effective date of payment for dependency and indemnity compensation benefits was January 1, 1989. The case has been forwarded to the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that an effective date, prior to December 27, 1988, is warranted for payment of her dependency and indemnity compensation benefits. She states that such payments should be made effective retroactive to 1950 when she originally filed a claim for dependency and compensation benefits. She argues that the VA determination of April 1979 had no sound or legal basis in declaring her guilty of fraud and misrepresenting her marital status for the purpose of obtaining dependency and indemnity benefits. The appellant argues that the VA field representative who previously conducted a field investigation failed to appreciate and evaluate properly the true facts of her case which led to forfeiture of her benefits. She specifies that she was not allowed due process of law in that she had no legal representation. In her opinion such apathy and adversarial posture of VA resulted in the forfeiture of her right to dependency and indemnity compensation benefits. The appellant argues that her marital status in the late 1980's was the same as it was in the 1950's when she originally filed her claim. She states that if she could be found to be the legal widow of the veteran in the late 1980's, there is no reason why she could not so be recognized in 1950, on the basis of a difference of opinion as found by the Board in its June 1991 decision. 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 files. 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 a grant of an effective date, prior to December 27, 1988, for payment of dependency and compensation benefits. FINDINGS OF FACT 1. In an April 1979 decision, the VA Director of the Compensation and Pension Service determined that the appellant, beyond a reasonable doubt, knowingly and deliberately made and submitted to VA false statements and evidence concerning her ostensible marital relationship with an individual named Bartolome in an attempt to obtain VA dependency and indemnity compensation benefits to which she had no legal entitlement. 2. The appellant did not file an appeal from the April 1979 decision of the VA Director of Compensation and Pension Service. 3. A reopened claim for dependency and compensation benefits was received from the appellant in 1987. 4. The RO continued the denial of entitlement to dependency and indemnity compensation benefits in a decision issued in June 1987; the claimant appealed that determination. 5. The RO issued a statement of the case to the appellant in October 1987; however, the appellant did not timely file a substantive appeal as such appeal was received on December 27, 1988. 6. In a June 1991 decision, the Board determined that the appellant did not timely file a substantive appeal from the RO's June 1987 determination which denied revocation of the previous forfeiture of dependency and indemnity compensation benefits. 7. In its June 1991 decision the Board determined, on the basis of a difference of opinion, that revocation of the forfeiture of dependency and indemnity compensation benefits should be granted on the basis of a difference of opinion. CONCLUSION OF LAW The requirements for an effective date, prior to December 27, 1988, for payment of dependency and indemnity compensation benefits, have not been met. 38 U.S.C.A. 5107, §§ 5110(a), 5111(a), 7104(a)(b) (West 1991); 38 C.F.R. §§ 3.104(a), 3.105(b), 3.400(h)(2) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board does not need to reach the question as to whether or not the appellant's claim is well grounded because the law concerning the effective dates of awards administratively granted on the basis of a difference of opinion enunciated in Board decisions is dispositive. In this regard, the effective date of an award administratively granted on the basis of a difference of opinion is the date of the reopened claim for the benefit sought, and payment of retroactive benefits in administrative grants is strictly precluded. 38 C.F.R. § 3.400(h)(2). Accordingly, regardless of the arguments or quality of evidence submitted by the appellant, the Board has no legal authority to issue a decision contrary to the June 1991 decision. In the appellant's case, a recitation of all the details of the historical record would serve no useful purpose. What is essential at present is the awareness that the appellant seeks to overturn a prior Board determination; namely, the June 4, 1991 decision. As was discussed earlier, the VA Director of Compensation and Pension Service issued a decision in 1979 resulting in the forfeiture of the appellant's right to dependency and compensation benefits. The appellant did not appeal that determination but later reopened a claim for the same benefits in 1987. She was denied by the RO, filed a notice of disagreement with the RO's decision and was issued a statement of the case. She had 60 days to file a timely perfected substantive appeal. The appellant did not submit an appeal until December 27, 1988, well beyond the 60 day limit. As noted earlier, in June 1991 the Board upheld the RO's determination that the appellant did not timely file a substantive appeal to the issued statement of the case. However, on the basis of a difference of opinion, the Board determined that revocation of forfeiture of the appellant's right to dependency and indemnity compensation benefits should be granted administratively. The appellant's action in submitting a substantive appeal on December 27, 1988, was interpreted by the Board as an attempt to reopen her claim. The Board noted that administrative determinations preclude retroactive payments and therefore December 27, 1988, should be the effective date for payment of benefits. The appellant actually received her first payment on January 1, 1989, because payments of monetary benefits based on an award of dependency and indemnity compensation may not be made to an individual for any period before the first day of the calendar month following the month in which the award became effective. 38 U.S.C.A. § 5111(a). The June 1991 decision of the Board is final in the absence of obvious error. 38 U.S.C.A. § 7104. The Board has no authority to grant retroactive payments of dependency and indemnity compensation benefits as such retroactive payments are precluded in grants of benefits administratively granted on the basis of a difference of opinion. 38 C.F.R. 3.400(h)(2). The Board finds no basis upon which to grant the claimant's appeal. ORDER Entitlement to an effective date, prior to December 27, 1988, for payment of dependency and indemnity compensation benefits is denied. ALBERT D. TUTERA 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.