This is аn appeal from a May 21, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to an effective date earlier than May 13, 1993, for an award of death pension benefits. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm the decision of the BVA.
I. BACKGROUND
The appellant, Rose Smith, is the widow of the veteran, Gerald Smith. The veteran
In April 1966, the veteran was granted a 100% disability rating for “collagen’s disease, suspected, manifested by fever, undetermined origin; encephalitis, mental confusion, organic brain syndrome, skin rash, arthral-gia, thrombophlebitis, and speech difficulty.” R. at 24. Collagen disease is a disease with widespread pathologic changes in the connective tissues, including thrombotic purpura and rheumatic fever. DoRland’s IllustRATed Medical Dictionary 480 (28th ed.1994). The veteran died in April 1968 from congestion of the lungs, liver, and kidneys as a result of a disease of the central nervous system. R. at 26.
The appellant filed a claim for dependency and indemnity compensation (DIC) in August 1969. R. at 29-32. The VA regional office (RO) requested information from her regarding her separation from the veteran. According to the appellant, the separation occurred because the veteran struck her. R. at 36. She also stated thаt they had separated because she was afraid she would contract a disease from him (R. at 52, 54) and because of his bizarre sexual behavior (R. at 70). In November 1969, the RO disallowed the appellant’s claim because she did not live continuously with the veteran from the date of marriage to the datе of the veteran’s death, and because she was not without fault in the separation. R. at 44. The adjudication officer noted that the appellant had given birth to a child in 1968 fathered by someone other than the veteran. R. at 42. Pension benefits were granted, however, for the children of the appеllant and the veteran. R. at 44. The appellant then filed a Notice of Disagreement (NOD) and a Statement of the Case (SOC) was issued.
The appellant filed a substantive appeal to the BVA in May 1970. In November 1970, the BVA issued a decision denying pension benefits to the appellant. R. at 61-63. The Board noted that even “[assuming the initial separation was without fault on [the appellant’s] part, we cannot ignore the fact that she subsequently gave birth to a child fathered by someone other than the veteran.” R. at 63. The Board thus concluded that “[t]he appellant was not without fault in the continuation of the separation between herself and the veteran.” Id.
The RO declined to reopen the claim in 1976. R. at 76. Following a hearing in January 1978, the appellant’s claim was denied again on the basis that the appellant was not without fault for the separation. R. at 106. The claim was also disallowed in March 1980 (R. at 124), April 1985 (R. at 137), December 1985 (R. at 154), and September 1987 (R. at 173, 179). The issue in the 1987 RO decision was certified to the BVA as whether “Mrs. Smith [was] without fault in the continuation of her separation from the veteran.” R. at 194. In February 1989, the BVA denied the claim on the basis that she was not without fault for the continuing separation. R. at 207. A claim to reopen wаs denied by the RO in July 1989. R. at 223.
In November 1993, the appellant requested reconsideration by the RO of the denial of her DIC claim based on this Court’s decision in Gregory v. Brown,
In February 1994, the RO re opened the appellant’s claim, granted DIC benefits, and assigned an effective date of May 13, 1993, the date of the Gregory opinion. R. at 240-41. The appellant then filed an NOD as to the effective date and an SOC was issued. In her substantive appeаl, the appellant argued that the initial denial of her claim in
In the decision on appeal, the BVA treated the appellant’s claim as a CUE claim, .stating that the appellant “argues that the RO’s denial of [the 1969] claim, on the basis that she had been at fault in the separation of her and the veteran, was clearly and unmistakably erroneous because it had been the veteran’s strange behavior thаt had caused their separation in 1960.” R. at 9. The BVA found that the 1969 RO decision had been subsumed by the 1970 BVA decision and thus, could not be reviewed for CUE. See Smith v. Brown,
II. ANALYSIS
Section 5110(d) of title 38, U.S.Code, provides that “[t]he effective date of an award of death compensation or dependency and indemnity compensation for which application is received within onе year from the date of death shall be the first day of the month in which the death occurred.” However, for a claim reopened after final adjudication, the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400. When DIC is awarded “pursuant to any Act or administrative issue, the effective date of such award ... shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue.” 38 U.S.C. § 5110(g).
In most cases, the determination regarding the рroper effective date involves fact finding by the Board and thus our review of the Board’s decision is under the deferential “clearly erroneous” standard. See Stewart v. Brown,
In its decision, the Board, relying on G.C. Prec. 10-94, seemed to suggest that the RO erred in assigning the effective date as of the date of the Court’s precedential decision in Gregory, but nevertheless concluded that an effective date earlier than that dеcision could not be assigned. The BVA is bound by VA General Counsel Precedent Opinions. 38 U.S.C. § 7104(c); 38 C.F.R. § 19.5; Sutton v. Brown,
The appellant argues that she should receive benefits as of the date she filed her initial claim in 1969. In order to achieve this, the appellant generally would need to show that the 1969 RO decision contained CUE. Section 3.105(a) of title 38, Code of Federal Rеgulations, provides in pertinent part that “[previous determina
Even assuming that the Court did have jurisdiction ovеr a properly raised CUE claim, there was no CUE in the 1969 RO decision because the decision was based on the law in effect at that time. The appellant argues that the Gregory decision interpreted the statutes and regulations pertaining to DIC benefits in the way that Congress and VA had intended and therefore, thе DIC benefits should be paid as of the date of the original claim. However, as this Court recently stated in Berger v. Brown:
There simply is nothing in the plain language of the statute, or its implementing regulation, that precluded the RO in 1969 from defining separation as encompassing the entire duration of the separation and not merely the date that the separation began. This is particularly true in light of the facts that were before the RO in 1969. The statute was, and still is for that matter, susceptible of differing interpretations depending, as is true in most cases, on the facts that are to be applied to the law. Certainly this is, at the least, a сase where reasonable minds could differ concerning the “correct” interpretation.
Rather than specifically arguing for an earlier effective date based on CUE, the appellant contends that the Gregory decision must be given full retroactive effect and that she is therefore entitled to an effective date as оf the date of her original claim in 1969. She is essentially arguing that the Gregory decision removed an ultra vires regulation and thus, the regulation should never have barred the appellant’s claim. She relies on Rivers v. Roadway Express, Inc., where the Supreme Court stated that “a judicial construction of a statute is an authoritative statement of what that statute meant before as well as after the decision of the case giving rise to that construction.”
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all casеs still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.
Id. at 97,
As the Secretary notes in his brief, the appellant relies on broad dicta from the aforementioned Supreme Court cases to support her argument. The cases cited by the appellant involve the issue of whether the judicial construction of a statute should be applied retroactively to the litigants then be
Thus, the claim presently on appeal is not a pending claim “still open on direct review” as contemplated in Harper, supra, but rather a claim reopened based on the submission of new and material evidence following a final disallowance. Since the appellant’s claim was not pending when Gregory was decided, the cases relied upon by the apрellant are not applicable to this case. The appellant cannot receive an effective date earlier than the date of her application to reopen her claim. See 38 U.S.C. § 5110(a) (“the effective date of an award based on ... a claim reopened аfter final adjudication ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” (emphasis added)); see also Waddell v. Brown,
Despite the appellant’s аrguments regarding the retroactivity of the Court’s decision in Gregory, a new interpretation of law need not be applied to a claim finally denied in 1969. The Gregory decision was properly applied to the appellant’s reopened claim, application for which was received by the RO in November 1993. Thus, the Board correctly denied an effective date earlier than the date of the Gregory opinion.
III. CONCLUSION
Upon consideration of the record, the appellant’s briefs, and the Secretary’s brief, the Court holds that the appellant has not demonstrated that the Board committed either factual or legal error which would warrant reversal or remand. See Gilbert v. Derwinski,