Citation Nr: 20003793 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 16-40 795 DATE: January 15, 2020 ORDER Entitlement to an effective date prior to May 7, 2015 for the award of special monthly pension (SMP) based on the need for aid and attendance is denied. FINDING OF FACT The Department of Veterans Affairs (VA) received the Veteran’s application to reopen a previously denied claim of entitlement to SMP based on the need for aid and attendance on May 7, 2015. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to May 7, 2015 for the award of special monthly pension (SMP) based on the need for aid and attendance are not met. 38 U.S.C. §§ 1502, 5110; 38 C.F.R. §§ 3.3, 3.23, 3.350, 3.351, 3.352, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to September 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the VA Regional Office (RO) in Seattle, Washington. In his August 2016 substantive appeal, the Veteran requested a Board hearing. He subsequently withdrew his hearing request in December 2019. Earlier Effective Date After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an effective date prior to May 7, 2015 for the award of SMP based on the need for aid and attendance. Accordingly, the Board denies the Veteran’s claim. In support of this determination, the Board first notes that, 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. 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 the he or she became permanently and totally disabled. 38 C.F.R. § 3.400(b)(1)(ii)(A)-(B). The Veteran was first found to meet the criteria for SMP based on the need for aid and attendance in an August 2015 rating decision. The RO assigned an effective date of May 7, 2015—the date VA received his claim. As the claim that was ultimately granted was received after October 1, 1984, 38 C.F.R. § 3.400(b)(1)(ii)(A)-(B) control. In order to assign an effective date prior to the date of receipt of claim, the evidence of record must demonstrate that not only was the Veteran permanently and totally disabled, but also that a mental or physical disability—not a result of his own misconduct—was so incapacitating that it prevented the filing of a claim for at least 30 days following the date on which the Veteran became permanently and totally disabled. If the record establishes such, and a claim is received within one year of the date of permanent and total disability, the Veteran may be entitled to an effective date up to the date of permanent and total disability. In the instant case, the Veteran has been permanently and totally disabled since August 1, 1983. See, e.g., August 2015 Social Security Administration (SSA) Benefits Planning Query. Accordingly, the first criterion of 38 C.F.R. § 3.400(b)(1)(ii)(B) is not satisfied as the claim which ultimately was granted was not received within 1 year of the date of permanent and total disability. Additionally, the record does not demonstrate that the Veteran experienced an incapacitating mental or physical disability of such a nature that it prevented the filing of a claim for at least 30 days following the date of permanent and total disability. As the Veteran has already been assigned the date of receipt of claim as the effective date for his award of SMP pursuant to 38 C.F.R. § 3.400(b)(1)(ii)(A), the Board must deny the Veteran’s claim. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.