BVA9508302 DOCKET NO. 93-08 584 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an effective date earlier than November 1, 1990, for the payment of death pension benefits. ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from October 1942 to February 1946 and from August 1951 to November 1970. The appellant has been determined to be the veteran's deemed valid widow for Department of Veterans Affairs purposes under the provisions of 38 U.S.C.A. § 103(a) (West 1991). The matter on appeal arises from an October 1992 decision by the aforementioned regional office (RO) by which the appellant was awarded death pension benefits, with payment effective from November 1, 1990. The appellant expressed disagreement with the effective date of that award in a letter received at the RO in January 1993. A statement of the case was issued in February 1993, and a substantive appeal was received in March 1993. Thereafter, the case was forwarded to the Board for its review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends in her substantive appeal that she had previously been awarded death pension benefits from April to July 1984, but that this had been terminated due to confusion regarding whether she was in fact the veteran's surviving spouse. Given that she is now considered to be the veteran's surviving spouse for VA purposes, she argues that her death pension benefits should be made effective from August 1984, when she believes those benefits had been previously terminated, or April 1984, when she first submitted a claim. She argues further that she does not remember receiving the July 1984 letter from the RO. 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 an effective date earlier than November 1, 1990 for the payment of death pension benefits is not warranted. FINDINGS OF FACT 1. In 1984, the appellant submitted a claim for death pension benefits. 2. In a letter to the appellant dated in July 1984, and sent to her address of record the RO asked her to provide additional information regarding her claim for death pension benefits. 3. The appellant did not respond to the RO's July 1984 request for information. 4. In October 1990, the appellant's claim for death pension benefits was received. 5. By a decision dated in October 1992, the appellant was awarded death pension benefits with payment effective from November 1, 1990. CONCLUSION OF LAW The criteria for assignment of an effective date for payment of death pension benefits earlier than November 1, 1990, are not met. 38 U.S.C.A. § 5111 (West 1991); 38 C.F.R. §§ 3.31, 3.158, (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record reveals that the veteran died in March 1984. In April 1984, the appellant submitted VA Form 21-534, and in May 1984 she filed VA Form 21-4100. (On VA Form 21-534 she claimed service connection for the cause of the veteran's death and this claim was denied in an unappealed rating action of June 1984.) Thus, there was a claim for death pension benefits. Under applicable law, the VA shall pay to the surviving spouse of a veteran who served 90 days or more during a period of war, (as the veteran did in this case), pension at a prescribed rate. 38 U.S.C.A. § 1541 (West 1991). The prescribed rate is fixed in accordance with a formula, and is to be reduced by the amount of the surviving spouse's annual income. 38 U.S.C.A. §§ 5312, 1541 (West 1991). Thus, in the event a claimant's annual income exceeds the prescribed rate at which pension can be paid, entitlement is not warranted. Further the term surviving spouse means a person of the opposite sex who was married to the veteran at the time of the veteran's death. 38 U.S.C.A. § 101(3) (West 1991). Whenever in the consideration of any claim filed by a person as a widow of a veteran it is established by evidence satisfactory to the Secretary that such person, without knowledge of any legal impediment, entered into a marriage with such veteran, which but for the legal impediment, would have been valid, the purported marriage shall be deemed to be a valid marriage, but only if no claim has been filed by a legal widow of such veteran who is found to be entitled to such benefits. 38 U.S.C.A. § 103(a). Thus, if a person is not a legal widow death pension can not be paid unless there is evidence establishing that the claimant is a deemed valid widow. In 1984, when the RO was considering the appellant's claim for death pension it had two problems; whether she was the legal widow or a deemed valid widow as the claims file contained a marriage certificate showing that the veteran married Edna in England prior to his marriage to the appellant, and whether her income was excessive for receipt of death pension. Accordingly, in a letter from the RO to the appellant dated July 11, 1984, she was requested to submit additional evidence regarding her marriage to the veteran, including her knowledge of any impediment to her marriage to the veteran, a copy of the latest award notice received by the veteran from his Service Department, and the status of her child. The appellant was also advised that the evidence must be submitted within one year from the date of the letter, otherwise, if entitlement was established benefits could not be paid prior to the date of its receipt. This letter was sent to the appellant at her address of record. The record contains no further evidence of any communication from the appellant until October 1990, when she submitted a new claim. In connection with this claim, investigation was conducted which concerned whether the appellant may be considered the veteran's legal widow or deemed valid widow for VA purposes. By an Administrative Decision dated in October 1992, it was determined that the appellant was considered the veteran's deemed valid widow for VA purposes, and later that month she was awarded death pension benefits. These benefits were made payable from November 1, 1990, the first day of the month following the month in which the RO received her most recent claim. Under applicable criteria, where evidence requested in connection with an original claim is not furnished within one year after the date of the request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension based on such evidence shall not commence earlier than the date of filing a new claim. 38 C.F.R. § 3.158. Payments 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 U.S.C.A. § 5111; 38 C.F.R. § 3.31 As set forth above, the evidence shows that the RO sought to obtain additional relevant information from the appellant regarding her claim for death pension benefits in July 1984. The appellant did not respond to the RO's request, and after one year, the claim is deemed abandoned. The appellant submitted a new claim for death pension benefits in October 1990. This claim was ultimately granted, with payment effective from November 1, 1990. Because the appellant had abandoned her claim in 1984, the earliest date, under the aforementioned criteria, that death pension may become effective, is the date of the new claim. In view of the appellant's re-application for benefits in October 1990, and the subsequent granting of those benefits with payment effective from November 1, 1990, under the above cited law and regulations, there is no basis on which to find that an earlier effective date is warranted in this case. The Board notes that there is also another alternative basis requiring a denial of the appellant's claim. The July 1984 letter from the RO to the appellant was notification of a denial of the appellant's claim for death pension, because it was anticipated her receipt of Survivors Benefit Plan Annuity would cause her annual income to exceed the maximum rate at which death pension benefits could be paid. Significantly, this letter also contained notice of appellate rights. Therefore, the failure of the appellant to submit a notice of disagreement within one year of this notice resulted in the decision to deny the claim becoming final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a) (1994). In October 1990, the appellant reapplied to the RO for death pension benefits. Thereafter, the RO reopened her claim and in a decision dated in October 1992, awarded her death pension benefits, with payment effective November 1, 1990. However, even under these circumstances, an effective date earlier than November 1, 1990 for the payment of death pension benefits would still not be warranted as the effective date for an award of pension based on a reopened claim shall be the date of receipt of claim or date entitlement arose, which ever is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (r) (1994). Payments of monetary benefits based on a reopened 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 U.S.C.A. § 5111; 38 C.F.R. § 3.31. Thus, if the 1984 decision to deny death pension benefits to the appellant had become final, the earliest date, under the aforementioned criteria, that death pension benefits may become effective, is the date of the reopened claim. Therefore, any benefits eventually established would not commence earlier than the date of filing a new claim. However, the Board is deciding this case on the basis that the appellant abandoned her 1984 claim when she did not respond to the RO's request for evidence regarding her status as a widow including any divorce of the veteran or her knowledge of any legal impediment to her marriage to the veteran. The Board is not deciding this case on the basis that there was a final denial on the basis of excess income in 1984. The reason the Board is choosing to deny the claim on the basis of abandonment of the 1984 claim is because that is the basis the RO used in the present appeal. The United States Court of Veterans Appeals has stated that the Board cannot address in its decision a question not considered by the RO unless the claimant would not be prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant would be prejudiced by the Board's denying on the basis of a final 1984 decision. The Board has also noted the appellant's contention in her substantive appeal, that she had previously been awarded death pension benefits, which were erroneously terminated, and that payment should resume effective from the time of the erroneous termination. However, the essential facts of this case have been set out above, and there is no supporting evidence in the claims file whatsoever to show the appellant had been awarded death pension benefits payable effective prior to November 1, 1990, or that otherwise supports her contention in this regard. Therefore, the Board finds this argument insufficient to warrant the assignment of an effective date earlier than November 1, 1990 for the payment of death pension benefits. The Board also notes the appellant's statement that "...there is evidence that VA has committed clear and unmistakable error, hence, the prior decision must be reversed." In this regard, the Board observes that this appeal is decided on the basis of abandonment of her 1984 claim. Therefore a claim of clear and unmistakable error was inappropriately raised as 38 C.F.R. § 3.105(a) (1994) provides that a final decision will be accepted as correct in the absence of clear and unmistakable error. This appeal is not being decided on the basis that there was a final denial. Finally, the Board notes the appellant's reference to 38 C.F.R. § 3.657(a) (1994) which provides that where a legal surviving spouse establishes entitlement after payments have been made to another person as surviving spouse, the full rate payable to the legal surviving spouse will be authorized effective the date of entitlement. However, as there is no evidence in this case that any payments have been made to anybody as the legal surviving spouse, the provisions of this regulation are inapplicable in this appeal. ORDER Entitlement to an effective date earlier than November 1, 1990 for the payment of death pension benefits 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 (CONTINUED ON NEXT PAGE) 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.