Citation Nr: 0003629 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-04 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to August 1, 1997 for payment of dependency and indemnity compensation (DIC) benefits. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had approximately six years and five months of active duty service, to include the period from March 1984 to March 1988. The appellant is the veteran's daughter. The Board notes that the present appeal was initiated and filed by the appellant's custodian on her behalf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 determination by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted the appellant's claim of entitlement to DIC benefits and assigned an effective date of August 1, 1997 for payment of those benefits. A notice of disagreement as to the effective date issue was received in January 1998, and a statement of the case was issued in March 1998. A substantive appeal (VA Form 9) was received by the RO in March 1998. FINDINGS OF FACT 1. The appellant is the veteran's daughter; she was born on November [redacted], 1982. 2. The veteran died on April [redacted], 1993. 3. The VA received notice of the veteran's death within one year of the date of death. 4. At the time the VA received notice of the veteran's death, VA had knowledge that the appellant was a dependent of the veteran with apparent entitlement to DIC benefits, but the VA did not furnish the appellant or her custodian with an appropriate application form. 5. On July 21, 1997, the RO received a formal claim for DIC benefits filed on the appellant's behalf by the appellant's mother and custodian. CONCLUSION OF LAW The criteria for entitlement to an effective date of May 1, 1993, for commencement of payment of DIC benefits for the appellant have been met. 38 U.S.C.A. §§ 5110(d)(1), 5111 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.150, 3.152, 3.155, 3.400(c)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran died on April [redacted], 1993. On April 23, 1993, the RO received an Application for Burial Benefits (VA Form 21- 530) from the veteran's mother. By award action in May 1993, DIC benefits were awarded to the veteran's mother, but no benefits were awarded for the appellant. On July 21, 1997, the RO received an Application for Dependency and Indemnity Compensation or Death Pension and Accrued Benefits by a Surviving Spouse or Child (VA Form 21- 534) from the appellant's custodian (who is also the appellant's mother). In October 1997, the RO granted the appellant's claim and assigned an effective date of August 1, 1997 for payment of DIC benefits. The present appeal ensued. Dependency and indemnity compensation may be awarded to a surviving child upon the service-connected death of a veteran. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.5(a). The effective date of an award of DIC benefits is the first day of the month in which the veteran's death occurred if the claim is received within one year after the date of death; otherwise, the effective date of the award shall be the date of receipt of the claim. 38 U.S.C.A. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). It is clear that a formal claim on the appellant's behalf was not received until July 21, 1997. In addition, there is nothing in the claims file which could reasonably be construed to constitute an informal claim for DIC for the appellant. In this regard, the Board notes that 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. In this regard, a review of the Application for Burial Benefits (VA Form 21-530) completed by the veteran's mother, which was received by the RO on April 23, 1993, shows that the portion of this application pertaining to surviving children (item #10) was not completed. There is nothing to show that the veteran's mother ever filed an Application for Dependency and Indemnity Compensation or Death Pension by a Surviving Spouse or Child (VA Form 21-534). In addition, the VA Form 21-530 contained no language, notation, or any indication whatsoever that the veteran's mother was intending to also claim DIC on behalf of the appellant. Therefore, the Board is unable to conclude that there is any communication which meets the requirements for an informal claim on the appellant's behalf, and there is no basis for finding that the VA Form 21-530, which was received by VA in 1993 constituted an informal claim so as to relate the effective date of the eventual DIC award to the appellant back to that time period. 38 C.F.R. § 3.155. However, notwithstanding the fact that there was no informal claim filed on the appellant's behalf in 1993, the Board notes that by regulation, once notice of the death of a veteran is received, VA is charged with the duty to furnish an appropriate application form for DIC benefits to any dependent of the veteran who has apparent entitlement. 38 C.F.R. § 3.150. The evidence of record at the time VA received notice of the veteran's death clearly documented the fact that the appellant was a child of the veteran with apparent entitlement to death benefits. This evidence includes, but is not necessarily limited to, the appellant's birth certificate, which was apparently of record since about 1990, and a Declaration of Status of Dependents (VA Form 21- 686c) completed by the veteran, and received by VA in July 1991. Nevertheless, there is nothing in the claims file showing that any application form was furnished to the appellant or to her custodian at that time. The question thus arises as to what impact, if any, this failure to furnish an application form pursuant to 38 C.F.R. § 3.150 has on the effective date of the appellant's DIC award. The U.S. Court of Appeals for Veterans Claims (Court) has addressed this problem in a situation under a different regulation. Specifically, the Court has held that the one- year filing period for VA benefits did not begin to run in a situation where the VA did not forward to a claimant a formal application form once an informal claim was received. Servello v. Derwinski, 3 Vet. App. 196, 200 (1992); see also Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). In other words, although as a general rule (under 38 C.F.R. § 3.155) a formal application must be received within one year of an informal claim if the date of receipt of the informal claim is to govern the effective date, in a situation where the VA fails to furnish a formal application form after receiving an informal claim, the Court has indicated that the effective date of the informal claim is to be viewed as the effective date of the award. The Board believes that the same essential analysis must apply to the facts of the instant case. Here, a regulation (38 C.F.R. § 3.150) charges the VA with an affirmative duty to furnish an application form for certain death benefits to a dependent of a deceased veteran who has apparent entitlement. Although the Court's holdings regarding the consequences of a failure to furnish an application form deal with informal claims under 38 C.F.R. § 3.155 and although the Board (as discussed earlier) is unable to find that any informal claim was received on the appellant's behalf in 1993, the provisions of 38 C.F.R. § 3.155 appear to impose a separate and express obligation on the VA in the limited circumstance when notice of the death of a veteran is received. Just as with the provisions of 38 C.F.R. § 3.155 dealing with informal claims, 38 C.F.R. § 3.150 requires the VA to furnish appropriate formal claim forms to certain individuals. In other words, it is as if the notice of the death of a veteran is in effect an informal claim for purposes of giving rise to a specific obligation on the part of the VA to certain individuals. Applying the Court's analysis, the Board therefore concludes that the failure to furnish the appellant or her custodian with an appropriate application form in 1993 after receiving notice of the veteran's death affords a basis for assigning an effective date of May 1, 1993, for commencement of payment of DIC benefits. In reaching this determination the Board has carefully considered a holding of VA's General Counsel which determined that a failure to furnish information regarding VA benefits under 38 U.S.C.A. § 7722 did not afford a basis for assigning an earlier effective date. VAOPGCPREC 17-95 (June 21, 1995). However, that opinion was expressly limited by the General Counsel to situations where any notification obligation under 38 U.S.C.A. § 7722 was not complied with. The General Counsel acknowledged that the scope of VA's obligation may differ under other statutory provisions. The Board finds that the specific, express duty to furnish an appropriate application form to certain individuals under 38 C.F.R. § 3.150 is a separate, distinct affirmative duty apart from any duty regarding outreach services under 38 U.S.C.A. § 7722. As such, the above-cited opinion of VA's General Counsel does not preclude assignment of an earlier effective date when the duty to furnish the appropriate application is not complied with. The Board finds that the failure to furnish an application form under 38 C.F.R. § 3.150 should be viewed as similar to a breach of VA's specific, express duty to provide a formal claim form under 38 C.F.R. § 3.155 after receiving an informal claim and that the analysis of the Court in situations involving a breach of the 38 C.F.R. § 3.155 duty should also apply to situations (as in the present case) involving a breach of the duty imposed by 38 C.F.R. § 3.150. In closing, the Board points out that the effective date of an award of DIC for which application is received within one year of the date of death shall be the first day of the month in which the death occurred. 38 U.S.C.A. § 5110(d)(1). The veteran died in April 1993, so it would appear at first that the effective date of the DIC award should be April 1, 1993. However, 38 U.S.C.A. § 5111 provides that notwithstanding section 5110, the payment of monetary benefits based on an award of DIC may not be made to an individual for any period before the first day of the calendar month following the month in which the award became effective. In other words, the effective date for commencement of payment of the appellant's DIC award is May 1, 1993. ORDER Entitlement to an effective date of May 1, 1993, for commencement of payment of DIC benefits for the appellant is warranted. The appeal is granted to this extent. BRUCE KANNEE Member, Board of Veterans' Appeals