Herzog v. Derwinski — Exhaustion required before Court review of a back-dated DIC filing theory

Jessie R. Herzog sought dependency and indemnity compensation (DIC) retroactive to the veteran’s death in 1982. After the veteran died, she filed a burial-benefits application in April 1982 and later received notice enclosing a DIC application and explaining the one-year filing rule for retroactive payment. She did not submit a DIC application until April 1988, and VA awarded benefits effective May 1, 1988. The Board denied an earlier effective date, finding that the burial claim was not an implied DIC application and that the claimant had been adequately informed of the need to file a separate DIC claim within one year of death.

The Court affirmed. It held that the Board did not err in concluding that the burial-benefits application could not be treated as a DIC claim on these facts, and that the notice provided to the widow was sufficient. The Court also refused to consider, for the first time on appeal, the argument that the 1988 DIC filing should be treated as an implied request for a nunc pro tunc back-dated filing to 1982, relying on the exhaustion doctrine. Because the appellant had not raised that theory before the Board, the Court declined review and granted summary affirmance.

Arguments and theories not presented to the Board are ordinarily not reviewable by the Court, and a claim for burial benefits is not necessarily an implied application for DIC absent a basis in the record.

Practitioners should ensure that the exact benefit theory and any requested retroactive filing date are expressly raised before the Board. This case is a reminder that the Court will enforce exhaustion and will not rescue an unpreserved effective-date theory on appeal.

Herzog is an early Court decision applying exhaustion principles in veterans appeals and distinguishing between different benefit applications. It matters because it limits attempts to convert one application into a different benefit claim after the fact and reinforces the importance of careful claim filing and issue preservation.

Failing to explicitly file the correct benefit application or to preserve a retroactive filing theory before the Board.

A surviving spouse files only for burial benefits after a veteran’s death and later argues on appeal that the submission should have been treated as a DIC claim. Under Herzog, the Court may refuse to consider a new back-dating theory that was never raised to the Board.

Use Herzog to argue exhaustion where an appellant raises a new effective-date or nunc pro tunc theory for the first time at the Court. It also supports the position that VA may require a separate, specific application for DIC when the record shows adequate notice of that requirement.

Mokal v. Derwinski, Gilbert v. Derwinski, Frankel v. Derwinski