Citation Nr: 18143896 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 17-50 696 DATE: October 22, 2018 ORDER Entitlement to an effective date prior to May 30, 2017, for the award of aid and attendance benefits is denied. FINDING OF FACT The Veteran died in May 2002; an intent to file a claim for aid and attendance allowance was received on May 30, 2017. CONCLUSION OF LAW The criteria for an effective date prior to May 30, 2017, for the grant of entitlement to aid and attendance benefits have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1940 to January 1946. He died in May 2002. The Appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision. The Appellant presented testimony before the Board in April 2018. A transcript of the hearing is of record. In a September 2018 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) affirmed the Board’s April 2017 decision denying entitlement to an effective date prior to November 12, 2009, for the award of dependency and indemnity income (DIC). Consequently, that matter is not before the Board. Entitlement to an effective date prior to May 30, 2017, for the award of aid and attendance benefits The Appellant’s claim for entitlement to aid and attendance was granted in August 2017, effective May 30, 2017. The Appellant contends that she is entitled to an earlier effective date. Specifically, she asserts that it should be as early as June 2, 2015, the date she was injured and became disabled. The term DIC means a monthly payment made by the Department of Veterans Affairs to a surviving spouse, child, or parent because of a service-connected death occurring after December 31, 1956. Basic entitlement for a surviving spouse exists if the Veteran’s death occurred on or after January 1, 1957. 38 C.F.R. § 3.5. Special monthly DIC in the form of increased DIC is payable to a surviving spouse who needs aid and attendance, or, if not in need of aid and attendance, who is housebound. 38 U.S.C. §§ 1311, 1315. The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria to be applied in determining whether a surviving spouse is in need of regular aid and attendance is as follows: (1) the spouse is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of a mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352 (a), which is to say, an inability of the claimant to dress or undress herself, or to keep herself ordinarily clean and presentable; a frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of the claimant to feed herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to her daily environment. “Bedridden” will be a proper basis for the determination. Regarding the Appellant’s claim seeking an earlier effective date for the award of aid and attendance benefits, 38 C.F.R. § 3.402 provides a specific rule governing the effective date of an award of aid and attendance or housebound benefits for a surviving spouse. Generally, an award of a higher rate of DIC based on the need for aid and attendance will be effective the date the claim for that benefit was received or the date entitlement to that benefit arose, whichever is later. The regulation provides for two limited exceptions. First, when an award of dependency and indemnity compensation based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional dependency and indemnity compensation payable to the surviving spouse by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.402(c)(1). Second, for the purpose of granting aid and attendance benefits, the date of departure from a hospital, institutional, or domiciliary care at VA expense may constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). Here, the Appellant has been receiving DIC since November 2009; therefore, the provisions regarding retroactive aid and attendance based on an award of retroactive DIC are not applicable. There is also no evidence the Appellant was hospitalized, institutionalized or in domiciliary care. This appeal essentially hinges upon the date the Appellant filed a claim for aid and attendance. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. Neither applicable law nor regulations impute legal significance to claims which have not been received by VA. While there are certain correspondences whose submission and receipt date can be dependent on a postmark, a claim or application for benefits is not one of them. “Date of receipt” means the date on which a claim was received in the Department of Veterans Affairs. 38 C.F.R. § 3.1(r). The Appellant filed VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension or Survivor’s pension and/or DIC, on May 30, 2017. The record does not contain any communication from the Appellant that may be reasonably construed as a formal claim or an intent to file a claim for regular aid and attendance received by VA prior to this date. See 38 C.F.R. §§ 3.151, 3.155. The Board notes the claim was awarded based on an Aid and Attendance examination completed by the Appellant’s son received in June 2017 showing the Appellant needed assistance in performing routine activities of daily living. It was also based on private medical records dated in May 2017 showing the Appellant had been diagnosed with breast cancer, hypertension and arthritis. The RO indicated that although the Appellant was able to perform some activities of daily living without assistance, they afforded her all reasonable doubt and determined she was entitled to aid attendance due to her advanced age and debilitating diagnoses. The Board notes that an Aid and Attendance examination completed by the Appellant’s primary care physician, confirming the need for aid and attendance, was submitted in August 2017. The Board is aware the Appellant has submitted medical records showing that she sustained a closed head injury without loss of consciousness in an accidental fall in June 2015 and was considered 100 percent disabled and unable to work; however, this was for worker’s compensation purposes. Generally, an award of a higher rate of DIC based on the need for aid and attendance will be effective the date the claim for that benefit was received or the date entitlement to that benefit arose, whichever is later. Even assuming she met the criteria for regular aid and attendance as early as June 2015, she did not submit a claim for benefits with VA at that time, and the date the claim was received by VA is the later of the two dates. Accordingly, no basis for awarding an earlier effective date has been presented, and the Appellant’s appeal is denied. While the Board is sympathetic to the Appellant’s beliefs that an earlier effective date is warranted, under the circumstances, the Board is precluded by statute and regulation from assigning an effective date prior to May 30, 2017, for the grant of aid and attendance benefits. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. L. Wallin, Counsel