Citation Nr: 18146059 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-38 991 DATE: October 30, 2018 ORDER An effective date prior to July 26, 2017 for the award of special monthly compensation (SMC) at the rate provided by 38 U.S.C. § 1114(l) is denied. REMANDED The issue of entitlement to SMC in excess of the rate payable under 38 U.S.C. § 1114(l) is remanded for further development. FINDING OF FACT The Veteran’s intent to file a claim for service connection, upon which receipt of SMC at the rate provided under 38 U.S.C. § 1114(l) is based, was received by VA on July 26, 2017. CONCLUSION OF LAW The criteria for an effective date prior to July 26, 2017 for the award of SMC at the rate provided under 38 U.S.C. § 1114(l) are not met. 38 U.S.C. §§ 1114(l), 5103, 5103A, 5107; 38 C.F.R. §§ 3.350, 3.352, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1943 to November 1945. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted SMC at the rate provided under 38 U.S.C. § 1114(l), effective January 29, 2018. Thereafter, via another rating decision in June 2018, the RO granted a new effective date of July 26, 2017 for the award of SMC at the rate provided under 38 U.S.C. § 1114(l). In September 2018, the Veteran and D.S.—her daughter and fiduciary—testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Earlier Effective Date for SMC As indicated above, the Board finds that an effective date prior to July 26, 2017 for the award of SMC at the rate provided under 38 U.S.C. § 1114(l) is not warranted. As such, the appeal is denied. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., “special”) compensation. Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. In this case, a March 2018 rating decision granted service connection for bilateral hearing loss and assigned an initial 100 percent rating, effective July 26, 2017—the date the Veteran filed a VA Form 21-0966 Intent to File a claim for compensation and pension. Thereafter, via a June 2018 rating decision, the RO granted an effective date of July 26, 2017 for the award of SMC at the rate provided under 38 U.S.C. § 1114(l). Here, an effective date prior to July 26, 2017 is not warranted as a matter of law. Although the Veteran may have satisfied the criteria for SMC at the rate provided under 38 U.S.C. § 1114(l) prior to July 26, 2017, VA must assign the date that it received the Veteran’s intent to file a claim upon which the initial grant for service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999). As there was no earlier claim for this benefit, an earlier effective date is not warranted. REASONS FOR REMAND Entitlement to SMC in Excess of the Rate Payable under 38 U.S.C. § 1114(l) In the Veteran’s June 2018 notice of disagreement, she mentioned entitlement to a different level of SMC. During the September 2018 Board hearing, D.S. clarified that she believed that the Veteran was entitled to SMC at any rate higher than the rate provided under 38 U.S.C. § 1114(l), including that provided under 38 U.S.C. § 1114(r). See Hearing Tr. at 2. The statement of the case (SOC) issued in July 2018 addressed prior contentions regarding SMC at the rate provided under 38 U.S.C. § 1114(s) and the Agency of Original Jurisdiction (AOJ) noted that the Veteran was already in receipt of SMC at the (l) rate which was higher. The AOJ then acknowledged that a higher rate of SMC could be warranted, but did not provide any analysis as to this possibility. Accordingly, remand is warranted for the issuance of an SOC addressing the possibility of entitlement to SMC at any rate higher than the rate provided under 38 U.S.C. § 1114(l). The matter is REMANDED for the following action: Issue an SOC addressing the issue of entitlement to SMC at any rate higher than the rate provided under 38 U.S.C. § 1114(l). The Veteran is hereby notified that, following the receipt this SOC, she must file a timely substantive appeal (VA Form 9) if she desires appellate review of this issue by the Board. If, and only if, a timely substantive appeal is filed, this issue should be returned to the Board for appellate review. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel