Citation Nr: 19192510 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 17-35 363 DATE: December 10, 2019 ORDER An effective date earlier than October 26, 2016, for the award of death pension benefits is denied. FINDING OF FACT The appellant’s claim for death pension benefits was received on October 26, 2016. CONCLUSION OF LAW The criteria for establishing entitlement to an effective date earlier than October 22, 2016, for the award of VA death pension benefits have not been met. 38 U.S.C. § 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 3.402 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1944 to October 1946 and from May 1950 to March 1954. The Veteran passed away in September 1990, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision. Earlier Effective Date The appellant seeks an earlier effective date for the award of VA death pension benefits with aid and attendance. Specifically, she seeks benefits beginning September 1, 2016, the first day of the month following her admission into a care facility in August 2016. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for an increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date for an award of pension, compensation, or dependency and indemnity compensation (DIC) to or for a surviving spouse, to include aid and attendance and housebound benefits, will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.402(c)(1). This regulation provides for two limited exceptions. First, when an award of DIC benefits based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional DIC benefits 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 be constitute the date of receipt of the claim. 38 C.F.R. § 3.402(c)(2). In the instant case, the appellant’s application for death pension benefits was received on October 26, 2016, and there is no evidence of any correspondence received prior to that date which could be construed as a formal or informal claim for VA death pension benefits. Additionally, the Board finds that the exceptions to the effective date rules provided under 38 C.F.R. § 3.402(c) are not applicable in this case. The date of the appellant’s claim for death pension benefits was determined to be October 26, 2016, and that is the effective date assigned. Thus, the appellant’s claim is not a claim for additional DIC benefits by reason of need for aid and attendance or housebound status where an award of DIC benefits was made effective for a period prior to date of receipt of the claim. See 38 C.F.R. § 3.402(c)(1). Moreover, the record does not show that the appellant departed from a hospital, institutional, or domiciliary care at VA expense. See 38 C.F.R. § 3.402(c)(2). The Board has considered the statements of the appellant’s fiduciary. The Board is deeply sympathetic to the appellant’s claim and regrets that, by law, it is unable to provide a more favorable outcome. The Board is grateful for the Veteran’s honorable service and acknowledges the Veteran’s status as a WWII Veteran. However, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. 38 U.S.C. § 7104 (2012). Based on the foregoing, the October 26, 2016, date of the receipt of the claim is the earliest possible effective date for the appellant’s award of death pension benefits with aid and attendance. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.402. C. BANISTER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Parrish, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.