BVA9502430 DOCKET NO. 93-05 227 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to October l99l for entitlement to disability and indemnity compensation (DIC) benefits on behalf of the veteran's child, [redacted]. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had periods of active service exceeding 21 years, including a verified period from September 1977 to August 1979. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that she never received notification from the VA that she needed to submit a copy of [redacted]'s birth certificate. She maintains that she did not realize that the VA benefits that had been granted did not include compensation for her daughter, [redacted]. It is averred that the RO committed administrative error, and that the appellant's daughter should not be denied benefits on that basis. It is requested that the appellant be granted the benefit of every reasonable doubt. 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 is entitled to an effective date of December 1, 1987, for entitlement to DIC benefits on behalf of the veteran's child, [redacted]. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran died on December [redacted] 1987. An application for DIC benefits submitted by the appellant for her and the veteran's daughters, [redacted] and [redacted], was received at the RO in February 1988; a copy of [redacted]'s birth certificate was attached. 3. A copy of [redacted]'s birth certificate was issued in April l988. The appellant furnished a copy to a Hillsborough County Service Officer for forwarding to the VA in May l988. 4. The appellant first learned that DIC benefits were being paid only on behalf of [redacted] after receiving a notice of amendment of benefits from the RO in April 1991. She then forwarded a certified copy of [redacted]'s birth certificate, which was received at the RO in September 1991. CONCLUSION OF LAW An effective date of December 1, 1987, for entitlement to DIC benefits on behalf of the veteran's child, [redacted], is warranted. 38 U.S.C.A. §§ 5107, 5103, 5110(d)(1) (West 1991); 38 C.F.R. § 3.400(c)(2) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). That is, the Board finds that she has presented a claim which is not implausible when her contentions and the evidence of record are viewed in the light most favorable to the claim. I. Background The appellant filed an application for dependency and indemnity compensation (DIC) benefits for [redacted] and [redacted], her and the veteran's daughters, which was received at the RO in February 1988. The appellant simultaneously submitted a certified copy of the veteran's death certificate, which indicated that the veteran had died on December [redacted] 1987; a copy of her and the veteran's Final Judgment of Dissolution of Marriage; and a certified copy of [redacted]'s birth certificate. The appellant retained sole custody of [redacted] and [redacted] at all times relevant to the instant appeal. By rating action of July 1988, service connection was granted for the cause of the veteran's death, and entitlement to benefits under 38 C.F.R. § 21.3020 was established. The claims file contains no evidence that the appellant was given notification of this decision. Compensation and Pension Award reports associated with the claim file indicates that the appellant began receiving benefits in March 1988, apparently addressed to her as "custodian of child of" the veteran. There is nothing of evidence to indicate that the appellant was sent an award letter outlining the benefits she was receiving. It is of note that the veteran's brother, [redacted] (hereinafter, Mr. [redacted]), had submitted applications for VA benefits during the same general time frame as the appellant, both on his behalf and as the custodian of the veteran's son [redacted]. A computer tear sheet from the RO, dated in August 1988, indicates that a request for [redacted]'s birth certificate was to be issued. However, the next day, the RO appears to have mistakenly issued a letter to Mr. [redacted], as the custodian of [redacted] Jr., requesting that he submit a certified copy of [redacted]'s birth certificate. Furthermore, a computer tear sheet dated in March 1989 indicated that a request for [redacted]'s birth certificate was again to be issued. The RO, however, appears to have issued a letter the next day to the appellant, addressing it to her as the custodian of [redacted], Jr., and enclosed information regarding applying for survivors and dependent's educational assistance. No mention was made of [redacted]'s birth certificate in that letter, and no March l989 correspondence to the appellant about [redacted]'s birth certificate is of record. In April 1991, the RO sent the appellant a letter addressed to her as the custodian of [redacted] [redacted]. The letter notified her that the DIC benefits had been amended, stating that, "This award includes benefits only for the veteran's child in your custody." (Emphasis added.) A VA Form 21-8765, Service Connected Death Award Attachment, was enclosed with the notice. The appellant submitted a statement in September 1991 along with a certified birth certificate for [redacted], stating that it was, "needed to allow your office to grant benefits for her as well as her sister [redacted]." By RO letter of October 1991, the appellant was notified of an increase in the amount of the benefits she was to receive on behalf of her daughters. A copy of an October 1991 benefit form reported the payee to be the appellant as custodian of [redacted], and stated the date of the claim as September 1991, apparently referring to the award of DIC benefits for [redacted], effective October 1991. In December 1991, the appellant submitted a letter to the RO requesting assistance in obtaining documents that would prove that [redacted] had been the payee initially named on the first VA benefit checks that she had received. There is no indication that any efforts were expended by the RO to provide the requested assistance. In her October 1991 notice of disagreement, the appellant stated that a certified birth certificate had been submitted to the RO in May 1988. She argued that she should not be held responsible for errors committed by the RO, and that the effective date for DIC benefits for [redacted] should be as of June 1988. The RO issued a statement of the case, denying entitlement to an earlier effective date. In summarizing the evidence, the RO reported that a letter had been sent to the appellant in March 1989, "again" requesting that a certified birth certificate for [redacted] be submitted. In its own recitation of the evidence, however, there is no indication that the RO had issued a March 1989 request. The RO cited to 38 C.F.R. § 3.158, regarding "abandoned claims," in denying entitlement to an earlier effective date. The RO stated that the appellant had not responded to a March 1989 request for [redacted]'s birth certificate within one year, thus abandoning her February 1988 claim for VA purposes until [redacted]'s birth certificate was received in September 1991. In her substantive appeal of July 1992, the appellant reiterated her contentions that she had submitted a certified birth certificate for [redacted] in May 1988, and that the checks issued her for the first year were also addressed to [redacted], before suddenly being changed to [redacted]'s name. The appellant stated that she had not received any letters from the RO requesting any documents, and that her address had remained constant throughout the pendency of her claim. She emphasized that she should not be penalized for RO processing mistakes, noting that a mistake had been made in her address on the Statement of the Case itself. The appellant provided testimony in support of her claim at a hearing at the RO in November 1992. She reported that a Mr. Tomaso (a Hillsborough County Service Officer) had submitted the original claim for the benefits in issue, which had included a birth certificate for [redacted]. She stated that she subsequently obtained a copy of [redacted]'s birth certificate, which was then sent by Mr. Tomaso to the RO shortly thereafter. The appellant testified that she had never received any notice regarding the granting of benefits, but had merely begun receiving checks that had been made payable to her for [redacted] for about one year, before they were made payable to [redacted]. No explanation for the change was given. She stated that she did not realize that the benefits granted did not include compensation for both daughters until she received a letter from the RO indicating that she was being paid for only one child. She thereafter sought assistance from Mr. Tomaso. The hearing officer noted that a series of complications had arisen in the veteran's file due to the veteran's numerous marriages. It was conceded that the RO had requested [redacted]'s birth certificate from the wrong person, the veteran's brother. The appellant testified that Mr. [redacted] had not informed her of the RO's request. The hearing officer stated that the RO's first check to the appellant had been under her name as "custodian of children" of the veteran, and that it had been changed to [redacted]'s name in 1989. The appellant emphasized that she had believed that she was receiving benefits for both children, and that there had been nothing to indicate otherwise. A copy of a letter dated in May 1988 addressed from Mr. Tomaso to the RO, stating that [redacted]'s birth certificate was being submitted in support of the DIC claim, was received that same date. A photocopy of [redacted]'s birth certificate, with a date of issuance in April 1988, was appended,. The hearing officer issued his decision in December 1992, continuing the denial of benefits. In support of his finding, the hearing officer stated that it was "apparent" that the appellant had known that a birth certificate had to be submitted for [redacted], citing her testimony and suggesting that Mr. Tomaso had failed to submit the document. It was noted that filing the birth certificate with the County Service Office was not equivalent to filing the same with the RO. The officer found "[t]he most significant evidence contained in the claim folder" to be the March 6, 1989, computer tear sheet directing that a birth certificate for [redacted] be requested from the appellant. He found that the appellant had failed to respond to that "request," and that her testimony was, therefore, inconsistent with the evidence of record. In statements filed by the appellant's representative on her behalf in February and October 1993, the appellant emphasized her contention that she had never received a request from the RO, but rather had been told to submit one by Mr. Tomaso after seeking his advice. II. Analysis The effective date for a grant of DIC benefits based on the service-connected death of a veteran after separation from service is the first day of the month in which the veteran died, if a claim is received within one year after the date of death; otherwise, it is the date of receipt of a claim. 38 C.F.R. § 3.400(c)(2). The appellant's application for DIC benefits for the veteran's daughters clearly was received well within a year after the veteran's death. Contrary to the RO's determination, the Board finds that the appellant never abandoned her claim for DIC benefits for [redacted], but rather had an open, pending claim since February 1988. In finding against the appellant, the RO determined that she had failed to respond to a March 1989 request for [redacted]'s birth certificate. The RO's reliance on a computer tear sheet of March 6, 1989, as evidencing that an appropriate letter had been sent to the appellant is misplaced, and not supported by the evidence of record. The Board notes that an August 1988 direction by computer tear sheet that a request for [redacted]'s birth certificate be issued appears to have resulted in a letter improperly being sent to Mr. [redacted], an individual who was not [redacted]'s custodian, the next day. Similarly, while the March 1989 computer tear sheet directing that [redacted]'s birth certificate be requested from the appellant had been created, it apparently resulted in a hand- completed form letter being sent to the appellant the next day, misaddressed to her as the custodian of the veteran's son, and regarding a different benefit than that being sought. The claim file contains no letter dated in August l988, March 1989, or otherwise, requesting that the appellant provide [redacted]'s birth certificate. The Board determines that the above-cited evidence strongly suggests that the RO never notified the appellant of the need to submit a copy of [redacted]'s birth certificate. Further, the Board finds that there is no evidence in the claims folder that the appellant received a letter from the RO explaining what benefits had been granted, and for whom, prior to the April 1991 letter "amending" the benefits. Indeed, in its statements of the case, the RO has not contended that it sent the appellant any letter prior to April 1991 explaining the benefits it had granted. Although the evidence of record fails to support the RO's interepretation of the evidence, it does appear to support the appellant's representations. The appellant has submitted copies of a May 1988 letter from the County Service Officer and [redacted]'s birth certificate, issued in April 1988, indicating that she had submitted the document to the RO in 1988. She has testified that copies of both birth certificates were in Mr. Tomaso's files, and that she had believed that both had been received by the RO. She consistently has reported that she had begun receiving VA benefit checks without any explanation of the benefit granted, and had believed that the checks represented benefits for both children. The appellant testified that she first learned that she was receiving benefits for only one child after receiving the RO's letter of April 1991. She reported that she thereafter conferred with Mr. Tomaso, and submitted a copy of the requested document. The Board finds the appellant's representations to be credible. Where, as here, an appellant submits a well-grounded claim, the VA's duty to assist in development of the same is triggered. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); 38 U.S.C.A. § 5107(a). Complementing that mandate is the statutory provision mandating the VA to notify a claimant of the evidence necessary to complete an application that is incomplete. See 38 U.S.C.A. § 5103. Where such statutorily-required notice is never sent to the appellant, the RO is in error. See Isenhart v. Derwinski, 3 Vet.App. 177, 180 (1992). Unlike the situation in Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), the appellant in the instant appeal has never been afforded reasonably clear notice of the evidence necessary to establish her claim (i.e., [redacted]'s birth certificate). As indicated above, the evidence indicates that the RO issued inappropriate letters in response to computer-generated directions to request a birth certificate for [redacted] both in February l988 and March l989. Interestingly, however, the March l989 computer tear sheet represents the RO's sole evidence that the appellant had been "requested" to provide [redacted]'s birth certificate at that time. During the appellant's RO hearing, the hearing officer acknowledged that confusion had occurred in the instant case due to the veteran's complicating numerous marriages, and the resulting claims. The end result of this confusion was a failure on the part of the RO to fulfill its duty to assist the appellant. See Robinette v. Brown, No. 93-985, slip op. at 12-13 (U.S. Vet. App. Sept. 12, 1994). The Board further finds that, as the appellant had been afforded no notice of any decision on the part of the RO to "deny" [redacted] benefits (i.e., that benefits were only being paid on behalf of [redacted], to the exclusion of [redacted]), that decision was not final, and the claim of entitlement to benefits on behalf of [redacted] remained open and pending. See 38 C.F.R. § 3.104. The RO's determination that the appellant had abandoned her claim rested on the false premise that the appellant had failed to provide requested information ([redacted]'s birth certificate). The relevant regulatory provision is clear; an appellant has one year to provide a response to requested evidence in connection with an original claim before it is considered abandoned. (Emphasis added.) 38 C.F.R. § 3.158. As noted above, however, the evidence of various errors and omissions by the RO in adjudicating the claim strongly suggest that the information needed to support the claim was not requested by the RO, and, thus, provides clear evidence to the contrary that VA employees in this case "properly discharged their official duties." See Ashley v. Derwinski, 2 Vet.App. 62, 64 (1992). As the Hearing Officer noted in his December l992 decision, the appellant apparently knew that she had to submit a birth certificate for [redacted]. The file contains persuasive evidence, however, that a copy of such birth certificate was issued in April l988 and furnished to the County Service Offices for forwarding to the VA in May l988. It is unclear whether the County Service Officer, in fact, forwarded such information to the VA. What is clear, however, is that but for the VA's failure to inform the appellant that benefits were only being paid for [redacted] and to request a birth certificate for [redacted], the required information would have been provided in a more timely fashion, very likely within a year of the appellant's filing of her claim in February l988. The appellant would thus be entitled to an effective date of December 1, l987 (the first day of the month of the veteran's death). See 38 C.F.R. § 3.400(c)(2). On the basis of the foregoing, and resolving all reasonable doubt in the appellant's favor, 38 U.S.C.A.. § 5107(b), the Board finds that an earlier effective date is warranted. ORDER An effective date of December 1, 1987, for entitlement to DIC benefits for the veteran's daughter, [redacted], is granted. JACQUELINE E. MONROE 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.