BVA9505313 DOCKET NO. 93-01 359 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date prior to September 1, 1990, for payment of Department of Veterans Affairs (VA) improved death pension benefits. REPRESENTATION Appellant represented by: Department of Veterans Affairs, California WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from December 1942 to June 1943. He died in April 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 1990 determination by the Los Angeles, California, Regional Office (RO). The appellant's notice of disagreement was received in December 1991. She testified at a personal hearing at the RO in March 1992, and a statement of the case was issued in May 1992. The appellant's substantive appeal was timely received in July 1992. The appellant is represented by the California Department of Veterans Affairs. CONTENTIONS OF APPELLANT ON APPEAL The appellant and her representative contend that the appellant is entitled to an earlier effective date for her award of VA death pension benefits in her capacity as surviving spouse of the veteran. Specifically, it is maintained that the appellant's 1986 application for accrued benefits should be viewed as an informal claim for death pension benefits. The appellant asserts that she did not file a formal claim for death pension benefits at that time because she was under the impression she was divorced from the veteran. She further reports that she first learned in 1990 that there was no final divorce and that she immediately filed for VA death pension benefits at that time. The appellant also contends that she was informed by VA personnel in 1986 that she was not the veteran's spouse and could therefore not apply for death pension benefits. 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 preponderance of the evidence is against entitlement to an effective date prior to September 1, 1990, for payment of VA improved death pension benefits. FINDINGS OF FACT 1. The veteran married the appellant in 1951. 2. The veteran died in April 1986. 3. A claim showing an intent to apply for VA death pension benefits as surviving spouse of the veteran was not received from the appellant until August 1990. CONCLUSION OF LAW The criteria for an effective date prior to September 1, 1990, for payment of death pension benefits have not been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.31, 3.150, 3.152, 3.155, 3.400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that the effective date for an award of nonservice-connected death pension based on a claim received on or after October 1, 1984, shall be the first day of the month in which the veteran's death occurred if a claim is received within 45 days of the date of the veteran's death; otherwise, the effective date shall be the date the claim is received. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400(c)(3)(ii) (1994). Regardless of these effective date provisions, payment of monetary benefits based on an award of pension 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 (1994). Regulatory law also provides that a specific claim in the form prescribed by the VA must be filed in order for death benefits to be paid to any individual. 38 C.F.R. § 3.152(a) (1994). The record in the present case shows that the veteran died in April 1986. In August 1990, the RO received the appellant's Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (including Accrued Benefits and Death Compensation, where Applicable) (VA Form 21- 534). Based on this application, the appellant was awarded improved death pension benefits and an effective date of September 1, 1990, was established for payment of those benefits. 38 C.F.R. § 3.31 (1994). The appellant contends, however, that a claim she filed in 1986 for accrued benefits should be considered an informal claim for death pension benefits, thus allowing for an earlier effective date for payment of death pension benefits. The claims file includes a copy of a marriage certificate showing that the appellant married the veteran in October 1951. Also of record is an Interlocutory Judgment of Dissolution of Marriage entered by a state court in 1971 listing the appellant as the petitioner and the veteran as the respondent. Various documents and affidavits submitted by the appellant support a finding that a final decree of divorce was never entered and that the appellant was still legally married to the veteran at the time of his death in 1986. The appellant's status as the veteran's legal spouse at the time of his death was recognized by the VA in 1990, and death pension benefits were awarded at that time. As already noted, a claim for death benefits is required to be in a specific form. 38 C.F.R. § 3.152(a) (1994). The record shows that the appellant did not file the required form until 1990. Nevertheless, under 38 C.F.R. § 3.155 (1994), any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. The appellant maintains that her 1986 application for accrued benefits constituted an informal claim for death pension benefits. The Board cannot agree. On an Application for Reimbursement From Accrued Amounts Due a Deceased Beneficiary (VA Form 21-601) received in November 1986, the appellant listed her relationship to the veteran as "wife." However, she left blank the box for identifying herself as the veteran's widow and then proceeded to report in her own handwriting that had been "supporting [her] ex-husband for many months prior to his death." A review of other pertinent documentary evidence, such as the veteran's death certificate, an application for burial benefits filed by the veteran's son and certain communications from the veteran himself all lead to the conclusion that at the time of the veteran's death, everyone concerned believed that the veteran and the appellant were legally divorced. Significantly, the appellant has testified that this was also her belief at the time. (The Board notes that she was the petitioner in the Interlocutory Judgment of Disability of Marriage in 1971. Thus it is not unreasonable that she would think she was divorced.) The Board emphasizes at this juncture that the regulation providing for informal claims clearly requires that an informal claim "must identify the benefit sought." Id. For the reasons discussed above, there was not only a failure to expressly identify death pension as the benefit sought by the appellant in her 1986 claim for accrued benefits, there was also no reasonable basis for reading any implied intent to apply for death pension benefits into the 1986 accrued benefits claim. There could certainly be no such implied intent since the appellant admittedly was not even aware at that time that the divorce was not final and that she was still legally married to the veteran so as to meet a threshold requirement for death pension benefits. There are certain exceptions to the general requirement that a claim for VA benefits identify the benefits sought. By regulation, a claim by a surviving spouse for compensation or dependency and indemnity compensation will also be considered to be a claim for death pension and accrued benefits. 38 C.F.R. § 3.152(b)(1) (1994). Moreover, a claim by a surviving spouse for death pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. Id. However, there is no similar regulatory provision which allows a claim for accrued benefits to also be deemed per se a claim for death pension benefits. Although not entirely clear, it appears that the appellant may be trying to assign fault to the VA for telling her she was not married to the veteran and that she therefore could not apply for death pension benefits. The Board finds no merit in such an argument. In view of the appellant's sworn testimony and other evidence of record, it is readily clear that the appellant herself did not believe she was the veteran's legal spouse at the time of his death. Moreover, while the provisions of 38 C.F.R. § 3.150(b) (1994) require the VA, upon receiving notice of the veteran's death, to forward the appropriate application forms for death pension benefits to any dependent who is apparently entitled to such benefits, it was simply not apparent from the veteran's claims file in 1986 that the appellant was entitled to death pension benefits. While there were documents in the claims file at that time showing that the appellant had been married to the veteran, the evidence closest in time to the date of the veteran's death clearly imparted the impression that the parties had divorced. As previously noted, the veteran's death certificate showed his marital status as divorced. An application for burial benefits filed by the veteran's son (who the appellant has reported is also her son) listed the veteran's marital status as divorced. Further, an income statement received from the veteran in October 1985, just a few months before his death, listed his marital status as divorced. In sum, the record supports the conclusion that the veteran and the appellant both thought they were divorced and that they were conveying that message to other persons as well as to the VA. Under the circumstances, the VA cannot be held responsible for proceeding under the assumption that the appellant was not the veteran's legal spouse. The Board sympathizes with the appellant. However, there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to her claim. Moreover, there is no statutory or regulatory exception for cases such as this where a claimant was herself not initially aware of her status as legal spouse of the veteran. Since the law is dispositive, the case must be denied. Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). ORDER The appeal is denied. E. M. KRENZER 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.