Citation Nr: 20050127 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 20-14 268 DATE: July 28, 2020 ORDER Entitlement to an effective date earlier than March 27, 2017 for the award of special monthly pension (SMP) based on the need for aid and attendance is denied. FINDINGS OF FACT 1. The earliest claim for entitlement to SMP based on the need for aid and attendance was received March 27, 2017. 2. A liberalizing law, section 206 of the Veterans Education and Benefits Expansion Act of 2001, went into effect as of September 17, 2001, more than one year prior to the Veteran’s claim for SMP benefits. 3. It has not been shown at any point in time that the Veteran had a physical or mental disability that prevented him from filing a disability pension claim for at least 30 days. 4. The Veteran was not shown to have become permanently and totally disabled by September 17, 2001. CONCLUSION OF LAW The criteria for an effective date prior to March 27, 2017, for the grant of SMP based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1502, 5110; 38 C.F.R. §§ 3.400, 3.401(a)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1944 to February 1946. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has been adjudicated as not competent to handle disbursement of payments of VA compensation benefits, and his daughter has been appointed as his fiduciary with respect to matters before VA. See 38 C.F.R. § 20.301; August 2017 statement in support of claim; February 2018 notification letter. Earlier Effective date for Aid and Attendance Here, the Veteran submitted his initial application for SMP based on aid and attendance on March 27, 2017. In July 2017, the RO issued a rating decision which awarded SMP based on aid and attendance, effective March 27, 2017. Thereafter, the Veteran submitted a VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report dated August 2017 and requested an earlier effective date for the award of SMP based on the need for aid and attendance. In an October 2017 rating decision, the RO denied this claim and the Veteran perfected an appeal as to this issue. Specifically, the Veteran is seeking an effective date one year earlier, i.e. March 27, 2016. As a general rule, the effective date of entitlement to an award of SMP is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.401(a)(1). Accordingly, the appropriate effective date for the SMP award is March 27, 2017, the date of claim. Although there are several exceptions to the general rule, none are pertinent in this case. One exception provides that if, within one year from the date on which a veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability that was not the result of the veteran’s own willful misconduct was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the pension award may be made effective from the date of receipt of the claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. 38 C.F.R. § 3.400(b)(1)(ii) (noting that while the facts and circumstances of each case apply, “extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim”). Where a retroactive award of pension has been made, entitlement to SMP may also be made retroactive so long as actual entitlement is shown from the earlier date. 38 C.F.R. § 3.401(a)(1). The Board finds that this exception does not apply to the instant case, as there is no indication in the record that the Veteran had at any time a physical or mental disability that was so incapacitating that it prevented him from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled some time prior his March 27, 2017 claim. Another exception to the general rules provides that when pension is awarded pursuant to any Act or administrative issue, the effective date of the award “shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award... be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.” 38 U.S.C. § 5110(g); see also McCay v. Brown, 106 F.3d 1577 (Fed. Cir. 1997) (holding that the “date of administrative determination of entitlement” is the date the VA makes its determination). The Veteran seeks an effective date of one year prior to the currently assigned March 27, 2017, which is based on his initial claim for SMP based on need for aid and attendance. When pension is awarded pursuant to a “liberalizing” law or VA issue, the effective date of such award cannot be earlier than the effective date of the law or administrative issue. 38 C.F.R. § 3.114(a). If pension benefits are awarded pursuant to a liberalizing law, for a claimant to be eligible for retroactive payment, the evidence must show that the claimant “met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law... and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.” If a claim is reviewed at the request of a claimant within one year from the effective date of the liberalizing law or VA issue, benefits may be authorized from the effective date of the law or VA issue. See 38 C.F.R. § 3.114(a)(1). If the claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. See 38 C.F.R. § 3.114(a)(3). On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was signed into law. Section 206 of the Act amended 38 U.S.C. § 1502(a) by modifying the qualifications for being considered “permanently and totally disabled.” Specifically, under the 2001 amendment to 38 U.S.C. § 1502(a), a person shall be considered permanently and totally disabled if he: (1) is a patient in a nursing home for long-term care due to disability; (2) is “[d]isabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner”; (3) is unemployable as a result of disability that is reasonably certain to continue throughout his life; or (4) is suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation, or a disease or disorder that is determined by the Secretary to justify a determination that individuals suffering from such a disease or disorder are permanently and totally disabled. The amendment to 38 U.S.C. § 1502(a) went into effect as of September 17, 2001. Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 206 Note, 115 Stat. 976 (2001). As the amendment to 38 U.S.C. § 1502(a) is a liberalizing law, for the Veteran to be eligible for a retroactive payment of SMP benefits, the evidence must show that he met all eligibility criteria for the liberalized benefit on September 17, 2001, the effective date of the liberalizing law. See 38 C.F.R. § 3.114(a). Additionally, the evidence must establish that such eligibility existed continuously from that date to the date of the claim or administrative determination of entitlement. See id. The most probative evidence of record does not show that the Veteran was a patient in a nursing home for long-term care due to disability, disabled as determined by the Commissioner of Social Security, unemployable as a result of disability reasonably certain to continue throughout his life, or suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation at the time of the September 17, 2001 liberalizing law. On his March 2017 application for SMP based on the need for aid and attendance, the Veteran indicated that he was not currently in a nursing home. He reported that diabetes, hypertension, and prostate cancer prevented him from working, as did his age. The March 2017 examination noted that the Veteran’s diabetes and hypertension restricted his activities. He was able to feed himself but needed assistance with bathing, toileting, and meal preparation. He did not require nursing home care but needed assistance with his medications. The Veteran was noted to have an unsteady gait which was normal for his age and he used a cane to ambulate. The Veteran had dementia and poor balance and only left his home with assistance from a family member and a cane. A September 2013 private treatment record reflects that the Veteran had a brain MRI which reflected recent small right occipital lobe infarct. Prior to his admittance to the hospital in June 2013, he was noted to have no significant past medical history and lived alone. He had previously been cognitively very sharp and payed his bills himself. An October 2018 statement reflected that the Veteran had been homebound since his June 2013 hospitalization due to his stroke, and would have needed the same amount of aid and attendance from March 2016. In summary, the evidence does not reflect that the Veteran met any of the criteria as of September 17, 2001. Rather, as stated above, the evidence reflects that the Veteran has been disabled since June 2013. As such, the Veteran was not entitled to an effective date for SMP benefits based on aid and attendance earlier than March 27, 2017, under the liberalizing law. As an earlier effective date for SMP benefits cannot be granted, the claim must be denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nadia Kamal, 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.