Citation Nr: 1309057 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 13-00 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than July 8, 2010 for the award of nonservice-connected pension. 2. Entitlement to an effective date earlier than July 8, 2010 for the award of special monthly pension based on the need for aid and attendance. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1943 to November 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, an informal claim for pension benefits was received by an office of the VA on June 30, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 30, 2010, but no earlier, for the award of nonservice-connected pension have been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.158, 3.400 (2012). 2. The criteria for an effective date of June 30, 2010, but no earlier, for the award of special monthly pension based on the need for aid and attendance have been met. 38 U.S.C.A. §§ 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.158, 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. Here, the Veteran is appealing the effective date assigned for the award of nonservice-connected pension and special monthly pension for aid and attendance. In this regard, because the December 2010 rating decision granted the Veteran's claims, the claims are now substantiated. His filing of a notice of disagreement as to the effective dates assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the effective date here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See 38 C.F.R. § 3.159(b)(3) (2012). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The October 2012 Statement of the Case set forth the relevant criteria for assigning effective dates. The Veteran was thus informed of what was needed to achieve the earliest possible effective date. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve the earliest possible effective date for the issues on appeal. With regard to the duty to assist, the claims file contains correspondence from the Veteran, his application for compensation and/or pension, a private medical record, and an examination for housebound status or permanent need for regular aid and assistance. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record that reasonably affects the outcome of this case. An additional VA examination at this point would not affect the Veteran's claims for an earlier effective date for the award of nonservice-connected pension and the award of special monthly pension based on the need for aid and attendance. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Effective Date Generally, the assignment of effective dates of VA awards is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for pension "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of a pension claim based on an original claim or a claim reopened after final disallowance will be "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. The effective date for pension claims received on or after October 1, 1984, is the date of receipt of the claim, unless, within one year from the date on which the Veteran became permanently and totally disabled, the Veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the Veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the Veteran became permanently and totally disabled. See 38 C.F.R. § 3.400(b)(1)(ii)(A)-(B). Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a) (2012). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that June 30, 2010, but no earlier, is the correct date for the award of nonservice-connected pension and special monthly pension based on the need for aid and attendance. The December 2010 rating decision shows that the awards of nonservice-connected pension and special monthly pension based on the need for aid and attendance were granted effective July 8, 2010. The RO explained that the Veteran's informal claim for pension benefits was received by the Milwaukee, Wisconsin RO on July 8, 2010, as shown by the date stamp. However, the Veteran and his representative have requested an earlier effective date of June 30, 2010. In the December 2012 VA Form 9, they averred that the Veteran's informal claim was received on June 30, 2010 by the VA Benefits Office in the Kansas City, Missouri VA Medical Center (VAMC) on June 30, 2010. The Veteran's representative stated that the office was negligent in that the date stamp is faint and illegible. It was noted that the claim was accepted by that office and there should be a record showing they took possession of that document. After a review of the claims file, the first correspondence from the Veteran, a VA Form 21-4138, which appears to be a copy of the original, was received by the RO on July 8, 2010 as shown by the date stamp. However, the top of the form shows a typed date of June 30, 2010. In addition, there appears to be an illegible date stamp on the VA Form 21-4138 exclusive of the July 8, 2010 stamp, which supports the Veteran's argument. Although it is unclear as to whether the Veteran's informal claim was received on June 30, 2010 by VA, the Board will resolve the benefit of the doubt in favor of the Veteran and grant an earlier effective date of June 30, 2010, but no earlier, for the award of nonservice-connected pension and special monthly pension based on the need for aid and attendance. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). An effective date earlier than June 30, 2010 is not appropriate as there is no document submitted prior to that date that requests a determination of entitlement or evidencing a belief in entitlement to or indicating any intent to apply for nonservice-connected pension benefits or pension based on aid and attendance and there is no indication that the Veteran's disabilities were so incapacitating that he was prevented from filing a nonservice-connected pension claim earlier. 38 C.F.R. §§ 3.1(p), 3.155(a). Therefore, the earliest effective date assignable in this case is June 30, 2010. ORDER Entitlement to an earlier effective date of June 30, 2010 for the award of nonservice-connected pension is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an earlier effective date of June 30, 2010 for the award of special monthly pension for aid and attendance is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs