Case A22022953

Summary

The veteran served from August 1963 to December 1967. This case concerns an appeal for Dependency and Indemnity Compensation (DIC) benefits, specifically regarding the effective date of the award. The appellant initially filed an incomplete VA Form 21-534EZ on August 7, 2017. The VA notified her that the form was outdated and incomplete, requiring a proper form. The appellant submitted a corrected form on January 23, 2018. The RO denied the DIC claim in a June 2018 rating decision, which the appellant appealed. After opting into the Appeals Modernization Act system in July 2019, the RO granted DIC benefits effective July 31, 2019. The veteran then sought a higher-level review for an earlier effective date, specifically August 7, 2017. The Board reviewed the case under the AMA framework, considering evidence of record at the time of the September 2019 rating decision. Applying 38 C.F.R. § 3.155(c) and § 3.400(r), the Board found that the initial August 7, 2017 submission, though incomplete, preserved the earlier effective date because a complete claim was submitted within one year. Therefore, the Board granted entitlement to an effective date of August 7, 2017, for the DIC award.

Rationale

Appellant submitted incomplete application on August 7, 2017.; Appellant submitted complete application on January 23, 2018.; 38 C.F.R. § 3.155(c) allows preservation of earlier filing date if complete claim submitted within one year of incomplete application.

Full Decision Text

Citation Nr: A22022953
Decision Date: 11/15/22	Archive Date: 11/15/22

DOCKET NO. 201027-115859
DATE: November 15, 2022

ORDER

Entitlement to an effective date of August 7, 2017 for the award of Dependency and Indemnity Compensation is granted.

FINDINGS OF FACT

1. On August 7, 2017, the Appellant filed an Application for Dependency and Indemnity Compensation, VA Form 21-534EZ.

2. In a January 3, 2018 letter, the VA notified the Appellant her August 2017 21-534EZ form was both outdated and incomplete. In the letter, the VA also explained that VA regulations required her to submit the claim on the proper form.

3. On January 23, 2018, the Appellant submitted a completed and updated version of the VA Form 21-534EZ, Application for Dependency and Indemnity Compensation.

4. In a June 2018 rating decision, the regional office (RO) denied the Appellant's DIC claim. Thereafter, in February 2019, the Appellant appealed this denial. See February 2019 Notice of Disagreement.

5. In July 2019, the RO issued a statement of the case (SOC) that continued the denial of the Appellant's claim. Subsequently, on July 31, 2019, the Veteran withdrew her appeal from the Legacy system and opted into the Appeals Modernization Act system using the July 2019 SOC. See July 2019 VA Form 20-0995, Supplemental Claim Application. 

6. In September 2019, the RO granted DIC benefits effective July 31, 2019. See September 2019 Rating Decision. The Appellant then submitted a December 2019 VA Form 20-0996, Request for Higher-Level Review seeking an earlier effective date of the DIC award. 

7. Subsequently, in December 2019, the RO granted an earlier effective date of January 23, 2018 because the RO found that the claim. Thereafter, in October 2020, the Veteran submitted a VA Form 10182, Notice of Disagreement seeking an effective date of August 7, 2017, the date the Veteran filed the incomplete and outdated VA Form 21-534EZ.

CONCLUSION OF LAW

The criteria for an earlier effective date of August 7, 2017 for the award of Dependency and Indemnity Compensation are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155(b), 3.400, 20.110(a).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1963 to December 1967. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a December 2019 higher-level review rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the new AMA framework.

As detailed in the Findings of Fact section, the Appellant opted into the AMA system in July 2019 via VA Form 20-0995, Supplemental Claim Application. In September 2019, the RO issued the second rating decision. Following the September 2019 rating decision, the Veteran submitted a VA Form 20-0996, seeking a higher-level review of the effective date of the DIC award. 

Thereafter, in December 2019, the RO granted an earlier effective date of January 23, 2018. Subsequently, the Appellant submitted the VA Form 10182, Decision Review Request: Board Appeal and selected the Direct Review docket. Based on the Appellant's election, the Board may only consider the evidence of record at the time of the September 2019 rating decision, the decision that was readjudicated by the RO in its December 2019 rating decision. 38 C.F.R. § 20.301.

Entitlement to an effective date of August 7, 2017 for the award of Dependency and Indemnity Compensation is granted.

As indicated above
 of the DIC award. 

Thereafter, in December 2019, the RO granted an earlier effective date of January 23, 2018. Subsequently, the Appellant submitted the VA Form 10182, Decision Review Request: Board Appeal and selected the Direct Review docket. Based on the Appellant's election, the Board may only consider the evidence of record at the time of the September 2019 rating decision, the decision that was readjudicated by the RO in its December 2019 rating decision. 38 C.F.R. § 20.301.

Entitlement to an effective date of August 7, 2017 for the award of Dependency and Indemnity Compensation is granted.

As indicated above in the Conclusion of Law section, the Board finds that the Appellant is entitled to an effective date of August 7, 2017 for her award of DIC benefits. Accordingly, the Appellant's claim is granted.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r).

The effective date established by submitting an initial claim can be preserved if the Appellant continuously pursued the claims within a year of the issuance of a decision. See 38 C.F.R. § 3.2500 (h)(1); see also Veterans Appeals Improvement and Modernization Act of 2017, 131 Stat. 1110 (2017) (codified as amended at 38 U.S.C. § 5110 (2019)).

Further, 38 C.F.R. § 3.155(c) applies to an incomplete application form. Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted on a paper application form prescribed by the Secretary that is not complete as defined in §3.160(a) of this section, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form prescribed by the Secretary. If a complete claim is submitted within 1 year of receipt of such incomplete application form prescribed by the Secretary, VA will consider it as filed as of the date VA received the incomplete application form prescribed by the Secretary that did not meet the standards of a complete claim. See §§ 38 C.F.R. § 3.155; 3.160(a).

As detailed in the Findings of Fact section, the Appellant submitted an incomplete and incorrect version of the VA Form 21-534EZ for DIC benefits on August 7, 2017. Here, the Board considers this an incomplete application pursuant to 38 C.F.R. § 3.155(c). On January 23, 2018, the Appellant submitted a complete and updated VA Form 21-534EZ for DIC benefits. Because the Veteran submitted the proper claim form within a year of filing her August 7, 2017 intent to file a claim, the Board finds that August 7, 2017 is the proper effective date. See 38 C.F.R. § 3.155(c). In sum, an effective date of August 7, 2017 for the award of Death and Indemnity Compensation is warranted.

 

Romina A. Casadei

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Foster, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.