Citation Nr: 20004351 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-12 298A DATE: January 17, 2020 ORDER Entitlement to an effective date prior to July 10, 2014, for the award of special monthly death pension benefits based on the need for aid and attendance of another is denied. FINDING OF FACT The appellant submitted a claim for special monthly death pension benefits based on the need for aid and attendance on July 10, 2014. CONCLUSION OF LAW The criteria for an effective date prior to July 10, 2014, for the grant of special monthly pension benefits based on the need for aid and attendance not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1967 to October 1969. He died in November 1998 and the appellant is his surviving spouse. This claim was previously before the Board in June 2018, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. Entitlement to an effective date prior to July 10, 2014, for the award of special monthly death pension benefits based on the need for aid and attendance An award of special monthly pension based on the need for aid and attendance will be effective from the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, under 38 C.F.R. § 3.401(a)(1), if the award of pension is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. The appellant submitted an examination report for housebound status or permanent need for regular aid and attendance on July 10, 2014. This was construed as a claim for special monthly death pension benefits based on the need for aid and attendance. On October 2015, the claim was granted with an effective date of July 10, 2014. There is no evidence or correspondence that was received prior to July 10, 2014, which could be construed as either a formal or informal claim. Therefore, July 10, 2014, the date of the instant claim, is the earliest possible effective date for the award of special monthly pension based on the need for aid and attendance, in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400. The Board has also considered whether 38 C.F.R. § 3.401(a)(3) may provide an earlier effective date for special monthly pension based on the need for aid and attendance, based on a retroactive award of pension. Under 38 C.F.R. § 3.401(a)(1), if there is a retroactive award of pension, then any additional pension payable by reason of the need for aid and attendance would also be payable retroactively. However, the Board finds that this is not the case here as there has been no retroactive award of pension. Therefore, the exception pursuant to 38 C.F.R. § 3.401(a)(1) is not applicable. Based on all of the foregoing, the Board finds that July 10, 2014, the date of the claim, is the proper effective date for the grant of special monthly death pension benefits based on the need for aid and attendance. See 38 C.F.R. § 3.400. Therefore, the claim for an effective date earlier than July 10, 2014, must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott Shoreman, 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.