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VA General Counsel Precedent Opinions |
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PREC 1-92 Claim for Death Benefits
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PREC 1-92 Claim for Death Benefits Citation: Vet. Aff. Op. Gen. Couns. Prec. 1-92, VAOPGCPREC 1-92, 1992 QUESTION PRESENTED:
Under 38 U.S.C. §§ 101(b) and 5105 (formerly §§ 3001(b) and 3005), should either an application for death benefits, filed by a veteran's surviving spouse on a VA Form 21-534, wherein the surviving spouse indicated that the veteran's death was not alleged to have resulted from military service, or an application for Social Security Administration (SSA) benefits on VA Form SSA-24, submitted simultaneously to the same VA regional office, be considered a claim for dependency and indemnity compensation (DIC)?
HELD:
The VA Form SSA-24, Application for Survivors Benefits under the Social Security Act, filed by the surviving spouse of a veteran at a VA regional office, constitutes a claim for dependency and indemnity compensation (DIC) despite the fact that the claimant indicated on a simultaneously filed VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by a Widow/er or Child, that service connection of the veteran's death was not being alleged. Unless it is determined that this claim was finally denied prior to VA's later award of DIC benefits, it must be considered to have been pending on that date for purposes of determination of the effective date of DIC benefits.
1 We note that VA has long assumed an affirmative duty under 38 C.F.R. § 3.103(a), now codified at 38 U.S.C. s 5107(a) (formerly § 3007(a)), to assist a claimant in developing the facts pertinent to a claim. See, e.g., Akles, 1 Vet. App. at 121. However, under section 5107(a), this affirmative duty does not
pertain unless the claimant has first "submitted evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." Murphy v. Derwinski, 1 Vet App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A "well-grounded claim" has been defined by COVA as "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of s 5107 (a) ." EF v. Derwinski, 1 Vet. App. 324, 325 (1991), quoting from Murphy, 1 Vet. App. at 81-82. In Sussex v. Derwinski, 1 Vet. App. 526, 529-30 (1991), COVA found a DIC claim well grounded where the claimant submitted the medical opinions of two treating physicians that the veteran's disease may have had its origin in service. In that the only evidence pertaining to service connection in the file associated with the surviving spouse's claims filed in October 1979 was the surviving spouse's own statement that the veteran's death was not alleged to be due to service, we would question whether a well-grounded claim for DIC had been submitted requiring VA to assist in factual development.
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 1-92 |
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