BVA9502143 DOCKET NO. 93-07 153 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an earlier effective date for the award of Dependency and Indemnity Compensation (DIC) benefits, prior to September 1, 1991. REPRESENTATION Appellant represented by: Lori Ann Landry, Attorney WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from June 1971 to May 1974. This matter arises from the determination by the New Orleans, Louisiana, Regional Office (RO) which awarded DIC benefits to the appellant from September 1, 1991. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the appellant that DIC benefits should have been granted from the time she visited the RO in August or September 1988. She argues that she was given incorrect advice at that time which kept her from filing a claim. She also contends that, in the alternative, benefits should be payable from the date of the claim of her minor daughter, Karen, in July 1990. 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 evidence supports assignment of an earlier effective date of August 1, 1990, for the award of DIC benefits. FINDING OF FACT The claim for benefits filed by the veteran's minor child in July 1990 may be construed as a claim for benefits for DIC benefits. CONCLUSION OF LAW The criteria for an effective date of August 1, 1990, for the payment of DIC benefits have been met. 38 U.S.C.A. §§ 5010, 5107 (West 1991); 38 C.F.R. § 3.400 (1993) REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, we find that she has presented a claim which is not implausible. Further, after reviewing the record, we are satisfied that all the relevant facts have been fully developed and that the case is properly in appellate status. In general, the effective date of an award of benefits based on the death of the veteran to a child shall be the first day of the month in which the child's entitlement arose, if application therefor is received within one year after such date. 38 U.S.C.A. § 5110(e)(1) (West 1991). Otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(c)(4)(ii) (1993). Regardless of VA regulations concerning effective dates of awards, payment of monetary benefits based on original claim for DIC 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). The evidence shows that the veteran committed suicide in July 1988. At the time of his death, service connection was in effect for a major depressive disorder, assigned a 100 percent evaluation. The appellant, the veteran's former wife and custodian of his minor children, has been awarded DIC benefits, payable from September 1, 1991. The appellant contends the effective date for payment of benefits should be from the date of the veteran's death. She avers that she visited the RO shortly after the veteran's death and was given incorrect advice on her ability to file for benefits on behalf of the veteran's children. The appellant testified at a hearing on appeal that she visited the RO on August 2, 1988. Her recollection of the date is based on the fact that this is the date of certification of the certificate of death which she obtained on that same day. She has not submitted any documentation to support her allegation that she attempted to file a claim or that she was given erroneous advice. Moreover, the law provides that a specific claim in the form prescribed by the Secretary is required. 38 U.S.C.A. § 5010. The first claim on file for DIC benefits was filed in July 1990, by the appellant's minor child, Karen. She listed her siblings as claimants as well. This claim was returned to her by letter of August 1990, on the basis that no benefit could be paid directly to her as a minor. She was given another form to be given to her mother. The letter was addressed to the minor child. In August 1991, the appellant contracted the RO regarding benefits. In a written statement, she indicated that she had visited the RO on September 23, 1988, and had been told that she could not file for benefits because she was receiving Social Security benefits. She also indicated that she returned in 1990 and was informed that she could not file for benefits but that her minor child could do so. She acknowledged that she was thereafter sent a letter which indicated that she should sign for benefits for all her children. She submitted the signed claim form in August 1991. Based on this application, benefits were awarded from September 1, 1991. There is no documentation to support the appellant's claim that she visited the RO in either August or September 1988 or that she was given incorrect advice. There is no basis on which to construe a claim for benefits, which is a prerequisite for payment. Accordingly, a basis on which to grant benefits from the date of the veteran's death has not been shown. However, the filing of the claim by her minor daughter presents strong equitable considerations. The claim filed by Karen was not sufficient for an award of benefits to her, since she was a minor child. It was construed as an informal claim for benefits. Any communication or action indicating an intent to apply for one or more benefits may be considered as 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 one 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. 38 C.F.R. § 3.155 (1993). The appellant did not file a formal claim until more than one year later. The question for consideration is what effect does the appellant's failure to return the forms in a timely fashion have on the effective date for the payment of benefits. The appellant has testified that she came to the office with the minor daughter in July 1990 and was instructed to fill out the claim in this manner. She has provided credible testimony in this regard which is consistent with the fact that the child is a minor and that the claim contained the names and birth dates of all the siblings. While the filing was incorrect for payment of benefits, it is difficult to imagine why the appellant would have filed in this manner, except on the basis of a misunder- standing of the advice given to her. It is not possible to know what advice she was given at that time, but it is clear that there was some type of misunderstanding. Given that one of the minor children filled out the form, naming her mother as the former wife of the veteran and listing all her siblings, the equities weigh heavily in her favor. Based on the peculiar facts in this case, the Board finds that the claim filed in July 1990, was sufficient to constitute a claim for DIC benefits on behalf of the veteran's minor children. Accordingly, benefits should be payable from August 1, 1990, the first day of the month following receipt of her claim. ORDER An earlier effective date for the payment of DIC benefits is granted. V. L. JORDAN 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.