Citation Nr: 1823908 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 17-43 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than January 23, 2017, for nonservice-connected pension with aid and attendance. REPRESENTATION Appellant represented by: Patricia A. Servaes, Agent ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Air Force from November 1965 to April 1966 and from January 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran filed a form notifying VA of his intent to file a pension claim on September 16, 2016. CONCLUSION OF LAW The criteria for an effective date of September 16, 2016, but no earlier, for the award of nonservice-connected pension benefits have been met. 38 U.S.C. §§ 1502, 1521, 5110, 7105 (2012); 38 C.F.R. §§ 3.159, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal is from the initial effective date assigned with the grant of nonservice-connected pension, and the statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, as this claim represents a downstream issue from the initial award of nonservice-connected pension, additional notice is not required. Furthermore, the Veteran has not alleged prejudice from any downstream notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Thus, adjudication of his claim at this time is warranted. The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C. § 5103A. It appears that all relevant and material records pertinent to effective date claim are of record. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Veteran contends that he is entitled to an effective date for his nonservice-connected pension earlier than the January 2017 date that has been assigned by the RO. Essentially, the Veteran argues that he submitted a form notifying VA of his intent to file a claim in September 2016 via fax and that the date that he submitted that correspondence should serve as the effective date for his award of a nonservice-connected pension with aid and attendance. 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); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). A claim is a written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2017). The intent to apply for benefits is essential to any claim and therefore, absent intent, no claim for entitlement exists. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); see MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, a claim, either formal or informal, must be in writing in order for it to be considered a "claim" for benefits within the meaning of the law. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA. 38 C.F.R. §3.155(d) (2017). A claim may be filed by either the Veteran, or his duly appointed representative. 38 C.F.R. §3.155. A claimant may indicate a desire to file a claim for benefits by filing an intent to file a claim to VA. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by VA. If VA receives a complete application form within one year of the receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. §3.155(b). In support of his claim, the Veteran submitted a Transmission Verification Report dated September 16, 2016, which is addressed to VA's evidence intake fax number and indicates that one page had been successfully transmitted to VA's intake number. He has also submitted a signed VA Form 21-0966 dated September 16, 2016. The Veteran argues that this signed form was the substantive document that he submitted to VA on that date and in which he contends he notified VA of his intent to file a claim for a pension. In the September 2017 supplemental statement of the case, VA acknowledged that the number identified in the Veteran's transmission report did, in fact, match the number listed on a VA website as VA's intake center. Regrettably, the claims file does not include any evidence that VA has been able to locate the substantive document that the Veteran has shown he submitted in September 2016. Nonetheless, the Board finds that additional records appear to corroborate the Veteran's account that his intent to file a claim was submitted at that time. Specifically, the record contains an authorization form permitting VA to disclose a release to a third party that was received in December 2016. Of particular relevance here, this form has a signature date of October 4, 2016, and authorizes the release of records to the same representative that is listed in the September 2016 VA Form 21-0966. A form granting that representative power of attorney was also submitted that same day. This evidence suggests that the Veteran was actively pursuing his claim prior to the currently assigned effective date of January 23, 2017. The claims file also contains an examination form relating to the Veteran's claim for nonservice-connected pension. Although that form was received in January 2017, it was signed by an examining physician on November 9, 2016. This additional evidence does not alter the fact that the earliest physical record in the claims file notifying VA of his intent to file a claim was received January 23, 2017. However, the Board finds that this evidence indicates that the Veteran was actively pursuing his claim prior to that date. It also appears consistent with the Veteran's contention that he believed he had an active VA claim beginning in September 2016. Taken with the successful fax transmission form that the Veteran has submitted, the Board finds that the competent, credible, and probative evidence of record is at least in equipoise and the Veteran's claim for an earlier effective date must be granted. ORDER An effective date of September 16, 2016, but no earlier, for the award of nonservice-connected pension is granted. ____________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs