BVA9507586 DOCKET NO. 91-20 310 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to payment of dependency and indemnity compensation prior to June 1, 1990. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul Gutstein, Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (Board) on an appeal from the August 1990 determination of the Department of Veterans Affairs (VA), Anchorage, Alaska, Regional Office (RO), which paid dependency and indemnity compensation to the appellant effective from June 1, 1990. The veteran, [redacted], served on active duty from March 1942 until he was killed in action in September 1944. The appellant filed a notice of disagreement in November 1990. She was furnished a statement of the case in March 1991. She filed a substantive appeal in April 1991. This case has been previously remanded by the Board in September 1991, and in March 1993. The appellant has been represented by the Disabled American Veterans since June 1994, and that organization has submitted written argument in her behalf. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that she became entitled to resumption of dependency and indemnity compensation in 1981 when her second husband died. She alleges that she called the VA approximately one month after his death, requesting whether she was entitled to any benefits as a widow of either her first or second husband, and was advised that she was entitled only to burial expenses for her second husband. She contends that she was entitled to benefits effective from the time that she initially contacted the VA in 1981 and was erroneously advised. 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 claims files of [redacted] and of W.D.H. Based on its review of the evidence in this matter, it is the decision of the Board that the payment of dependency and indemnity compensation to the appellant prior to June 1, 1990, is not warranted. FINDINGS OF FACT 1. The appellant was in receipt of death benefits based upon the death of [redacted] from September 1944 until January 1945, when the appellant married W.D.H. 2. The appellant then filed an application for dependency and indemnity compensation May [redacted]1990 based on the death of [redacted] and submitted a death certificate for her second husband, W.D.H., showing that he died on September [redacted] 1981. 3. The appellant was paid dependency and indemnity compensation based on [redacted]'s death effective from June 1, 1990, the first day of the month following the date of claim. CONCLUSION OF LAW The payment of dependency and indemnity compensation prior to June 1, 1990, the first day of the month following the date of reopened claim, is not warranted. 38 U.S.C.A § § 5110(a) (l), 5111(West 1991); 38 C.F.R. § § 3.31, 3.400(v) (3) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has concluded that the appellant is not entitled to the payment of dependency and indemnity compensation prior to June 1, 1990, the first day of the month following the date that her claim was received. This determination is based upon a review of the complete evidentiary record, which includes the claims files of both [redacted], the appellant's first husband, and W.D.H., her second husband. The evidence in this case establishes that the veteran, [redacted], entered active duty in March 1942 and was killed in action in September 1944. At the time of his death, he was married to the appellant, who was awarded death benefits that were discontinued effective January 22, 1945, based upon her remarriage to W.D.H. The appellant then filed an application for dependency and indemnity compensation based on the in-service death of [redacted] on May [redacted]1990, and submitted a death certificate for her second husband, showing that he died on September [redacted] 1981. She was paid dependency and indemnity compensation effective June 1, 1990, the first day of the month following the date of claim. 38 U.S.C.A § § 5110(a) (l), 5111(West 1991); 38 C.F.R. § § 3.31, 3.400(v) (3) (1994). As stated above in the contentions, the appellant argues that she was entitled to resumption of dependency and indemnity compensation in 1981, when her second husband died. A review of the file of W.D.H. does not show a call to inquire about benefits based on her first husband's death. The file does contain a VA Form 21-530, Application for Burial Benefits based on W.D.H's death from a funeral home which was received in October 1981. This form was certified by the appellant as W.D.H.'s wife. W.D.H.'s file also contains a November 10, 1981 letter to the appellant from the VA expresssing regret on the death of W.D.H. and inviting her to file for death benefits. Enclosed with this letter was VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child. A report of the Social Security Administration dated June 29, 1993, shows that the appellant was advised that the records show she had filed for widow's benefits based on W.D.H. in June 1985 and the lump-sum death benefit under W.D.H.'s record. Further, that she was paid the lump-sum death payment and her widow's benefits became effective August 1985. The provisions of 38 U.S.C.A. § 5105 (West 1991) and 38 C.F.R. § 3.153 (1994) provide, in essence, that a claim for Social Security or for dependency and indemnity compensation shall be deemed an application for benefits for both VA and Social Security purposes if filed on the appropriate joint form. While it is indicated above that the appellant filed a claim for Social Security benefits as widow of W.D.H., the Social Security Administration does not indicate that the appellant filed a claim under the veteran's name, [redacted]. Where there is termination of remarriage of the surviving spouse due to the death of spouse, the effective date of the award will be the date of death if the claim is filed within one year after that date but otherwise the date of receipt of the claim. 38 U.S.C.A § 5110(a) (l)(West 1991) 38 C.F.R. § 3.400(v)(3) (1994). The facts show that the appellant filed a claim for dependency and indemnity compensation as the widow of [redacted], on May [redacted] 1990, following termination of remarriage to her second husband, W.D.H., who had died on September [redacted] 1981. She was properly paid benefits as the widow of [redacted], beginning June 1, 1990, the first day of the month following the date of the claim due to the provisions of 38 U.S.C.A. § 5111 (West 1991); 38 C.F.R. § 3.31(1994) which provide that nothwithstanding section 5110 of Title 38, payment of monetary benefits based on an award of dependency and indemnity compensation may not be made for any period before the first day of the calendar month following the month in which the award became effective. While the appellant contends that she contacted the VA within one month of W.D.H's death regarding benefits based on either her first or second husband's death, the record does not support this contention which the Board finds not to be credible. ORDER Entitlement to payment of dependency and indemnit compensation prior to June 1, 1990, 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. 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.