## Facts

- Keith Kennedy, a veteran with service-connected disabilities including depression secondary to a knee condition, died in 2005.
- The death certificate listed metastatic melanoma as the immediate cause of death and identified Type 2 diabetes, hypertension, and “depression disorder” as significant contributing conditions.
- The veteran’s surviving spouse, Florence Kennedy, filed multiple claims for Dependency and Indemnity Compensation (DIC) after his death; VA denied the claims from 2005 to 2010 for lack of evidence linking death to service.
- In 2013, VA issued Fast Letter 13-04 directing adjudicators to presume that a service-connected disability listed as a cause or contributory cause on a death certificate contributed substantially and materially to the veteran’s death.
- In 2015, Mrs. Kennedy sought to reopen; VA granted DIC relying on Fast Letter 13-04 because depression appeared on the death certificate.
- Mrs. Kennedy sought an earlier effective date for the DIC award; the Board denied, and she appealed to the Court of Appeals for Veterans Claims.

## Issues

1. Whether Fast Letter 13-04 qualified as a “liberalizing law” or “liberalizing VA issue” under 38 C.F.R. § 3.114(a) for purposes of assigning an earlier DIC effective date.
2. Whether internal, non-regulatory VA guidance can trigger § 3.114(a)’s special effective-date rules.

## Decision

- The court affirmed the Board’s denial of an earlier effective date.
- The court held Fast Letter 13-04 was not a “liberalizing law” or “liberalizing VA issue” within the meaning of 38 C.F.R. § 3.114(a).
- Because § 3.114(a) did not apply, the effective date was governed by the ordinary effective-date rules rather than the date of the Fast Letter.

## Legal Principles

- 38 C.F.R. § 3.114(a) applies only when an award is made pursuant to a qualifying liberalizing change in law or a qualifying liberalizing VA issuance approved by, or under the direction of, the Secretary.
- Internal VA guidance (such as Fast Letters) generally lacks the force of law, may be revised without formal rulemaking, and typically does not create new substantive entitlements.
- A change that is “liberalizing in effect” is insufficient for § 3.114(a) absent a formal, generally applicable substantive change in the governing legal standard.

## Conclusion

The court held that a VA Fast Letter directing adjudicators to apply a presumption in processing DIC claims does not qualify as a “liberalizing law” or “liberalizing VA issue” under 38 C.F.R. § 3.114(a), so it cannot support a retroactive earlier effective date for DIC beyond what ordinary effective-date provisions allow.


Kennedy v. Wilkie, 33 Vet. App. 114 (2020)