Citation Nr: 18149569
Decision Date: 11/09/18	Archive Date: 11/09/18

DOCKET NO. 18-28 425
DATE:	November 9, 2018
ORDER
Entitlement to an effective date prior to September 23, 2016 for the grant of nonservice-connected pension is denied.
FINDING OF FACT
The Veteran first filed for nonservice-connected pension on September 23, 2016.
CONCLUSION OF LAW
The criteria for an effective date prior to September 23, 2016 for the grant of nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 5103, 5110 (2012); 38 C.F.R. §§ 3.400, 4.16, 4.17 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Entitlement to an effective date prior to September 23, 2016 for the grant of nonservice-connected pension
The Veteran argues that he is entitled to an effective date prior to September 23, 2016 for nonservice-connected pension benefits as he has had approximately the same income since 2011.
Pension benefits are payable to a veteran of war who has the requisite service and who is permanently and totally disabled due to disabilities not the result of his willful misconduct. 38 U.S.C. §§ 1502, 1521 (2012); 38 C.F.R. § 3.342 (2017).
Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). 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 a veteran became permanently and totally disabled. 38 C.F.R. § 3.400 (b)(1)(ii)(A)-(B) (2017).
The effective date of first payment of pension will be the first day of the month following the month in which the pension award became effective. 38 U.S.C. § 5111 (2012); 38 C.F.R. § 3.31 (2017).
The Board has reviewed the Veteran’s claims file, but finds no earlier claim for nonservice-connected pension benefits prior to September 23, 2016. There is no evidence that the Veteran became permanently and totally disabled in the year prior to filing his claim such that he was unable to file a claim for at least the first 30 days after becoming permanently and totally disabled.
The Board acknowledges the Veteran’s contention that his income has not changed since 2011; however, income alone is not dispositive in determining the effective date for the grant of nonservice-connected pension. Here, the proper effective date is the date on which the Veteran filed his claim.
Thus, the earliest effective date for which entitlement to nonservice-connected pension may be granted under the law is September 23, 2016. No equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429 (1992); Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). Therefore, the Veteran’s claim for an earlier effective date must be denied.
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Christensen