BVA9507595 DOCKET NO. 92-19 169 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an earlier effective date for the restoration of payment of Dependency and Indemnity Compensation benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and A.P. ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from May 1942 to October 1945. He died in December 1948. This matter arises from a October 1990 action in which the regional office (RO) established July 1, 1990, as the effective date for the restoration of payment of Dependency and Indemnity Compensation Benefits (DIC). At the appellant's request, a hearing was held before a member of the Board of Veterans' Appeals (the Board) in October 1992. The Board member conducting that hearing is the signatory to this decision. The Board entered a decision in this case in February 1993. In December 1994, the United States Court of Veterans' Appeals (the Court) vacated the Board's decision and remanded the case to the Board. Alfieri v. Brown, No. 93-501 (U.S. Vet. App. Dec. 16, 1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the effective date for the restoration of DIC benefits should be January 31, 1986, the date she submitted an application for widow's insurance benefits with the Social Security Administration. 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 correct effective date for restoration of DIC benefits is January 26, 1986. FINDINGS OF FACT 1. The appellant submitted an application for widow's insurance benefits which was received by the Social Security Administration on January 31, 1986. 2. The appellant's remarriage was terminated by death on January 26, 1986. 3. The appellant's application for restoration of DIC benefits is deemed to have been received by the Department of Veterans Affairs (VA) on January 31, 1986. CONCLUSION OF LAW An effective date of January 26, 1986, for the restoration of DIC benefits is warranted. 38 U.S.C.A. §§ 5101, 5105, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.1, 3.55, 3.152, 3.153, 3.201, 3.400 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the appellant has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107. In this regard, she has submitted evidence in support of her claim which renders it plausible. The Board also finds that the Department of Veterans Affairs (VA) has complied with its obligation to assist her with the development of the claim under the same code provision. Service connection for the cause of the veteran's death was granted in a rating decision dated in January 1949, and the appellant was awarded DIC benefits. In August 1957, the appellant notified VA that she had remarried and her DIC benefits were terminated. This marriage was terminated by the death of the appellant's spouse on January 26, 1986. Records submitted by the appellant during the course of her appeal to the Court, show that she submitted an application for widow's insurance benefits which was received at a Social Security Administration district office on January 31, 1986. Although this evidence has not been reviewed by the RO, the Board is permitted to consider this evidence without RO review in order to grant the benefit sought on appeal. 38 C.F.R. § 20.1304 (1994). In essence, the provisions of 38 C.F.R. § 3.55 provide that the remarriage of a surviving spouse will not be a bar to benefits if the marriage is terminated by death prior to November 1990. Under the provisions of 38 C.F.R. § 3.400(v) (1994), the effective date for restoration of benefits based on the termination of remarriage due to death, is the date of death, if a claim is received within one year after the death. An application for benefits under chapter II of the Social Security Act will be deemed as an application for DIC benefits. 38 U.S.C.A. § 5105. For purposes of determining the effective date for payment of DIC benefits, evidence will be deemed to have been received at VA on the date it was received by the Social Security Administration. 38 C.F.R. § 3.201(a) (West 1991). The record now shows that the appellant submitted an application for benefits under chapter II of the Social Security Act which was received by the Social Security Administration on January 31, 1986. Under applicable laws and regulations, this application is deemed a claim for DIC benefits received by VA on January 31, 1986. Since this claim was received within one year of the termination of remarriage by death, the correct effective date for the restoration of the appellant's DIC benefits is the date her remarriage was terminated by death, January 26, 1986. ORDER An effective date of January 26, 1986, for the restoration of DIC benefits is granted. LAWRENCE M. SULLIVAN 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.