Citation Nr: 21067523 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 20-28 475 DATE: November 4, 2021 ORDER An earlier effective date of March 1, 2016, for the grant of an increased apportionment is granted. FINDING OF FACT The Department of Veteran's Affairs (VA) Agency of Original Jurisdiction's (AOJ) failed to properly respond to the Veteran's February 2016 submission regarding her claim for an increased apportionment under 38 C.F.R. § 3.155(a). CONCLUSION OF LAW The criteria for entitlement to an effective date of March 1, 2016, for the award of an increased apportionment are met. 38 U.SC.§§ 1155, 5103(a), 5103A, 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 apportionment decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously before the Board in June 2021 and has not returned for further appellate review. Entitlement to an earlier effective date of February 7, 2016, for the grant of an increased apportionment The appellant seeks an effective date prior to January 1, 2017, for the grant of an increased apportionment of the Veteran's VA benefits. She asserts that she was entitled to an effective date of February 17, 2016, the date in which she submitted a VA form 21-4138 statement in support of claim requesting an increase in her apportionment award. She explained that at no time did she receive correspondence that her request was on the incorrect form. The general rule for assigning an effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400. With respect to awards of an apportionment of benefits, the effective date of a claim that is not an original claim is first day of the month following the month the claim (for an apportionment of a veteran's award) is received. See 38 C.F.R. § 3.400(e)(1); see also 38 U.S.C. § 5110 (b)(2)(B) ("For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation."). In this case, the claim for an earlier effective date for the apportionment at issue is not based on an original claim for the underlying benefits. Therefore, this claim turns on when the claim for apportionment was received. Effective March 24, 2015, VA regulations no longer recognize an informal claim for benefits. See 79 Fed. Reg. 57694 - 57697 (Sept. 25, 2014). That is, a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p), 3.155, 3.160 (effective Mar. 24, 2015). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, and upon receipt of such a request, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The new regulations also provide rules regarding when a veteran submits something that does not meet the complete claim threshold. See 38 C.F.R. § 3.155(a). Where a veteran or his representative "indicates a desire to file for (VA) benefits... by a communication or action... that does not meet the standards of a complete claim (, it) is considered a request for an application form for benefits under §3.150(a)." 38 C.F.R. § 3.155(a). "Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary." Id. Turning to the evidence of record, the appellant submitted a VA form 21-4138 Statement in support of claim on February 17, 2016. This statement was not submitted on a VA Form 21-0966, the proper Intent to File a Claim form, nor accompanied by a valid formal application which was a VA 21-0788 form, Information regarding apportionment of beneficiary award. However, the submission clearly indicates that the appellant was claiming an increase in her apportionment while the Veteran was incarcerated. As such, this triggers the VA's duty to assist under 38 C.F.R. § 3.155(a). The VA failed to respond as required under 3.155(a) by informing the appellant of the information necessary to complete an application and did not provide her with any of the necessary forms (either an Intent to File a Claim form or a formal application form) to submit her claim. Instead, the VA sent a standard 5103 notice to the Veteran in February 2016 and indicated that they were working on his claim. There was no mention of the apportionment or that the correct form was not used. As previously noted, the Veteran was incarcerated, and his address of record was different from the appellant's address as they lived separately prior to that. On December 14, 2016, the appellant submitted the correct form for the apportionment increase. The appellant then received a notice to submit the correct VA form in May 2017, which was after her December 2016 submission. In an October 2017 report of general information, it is documented that she was informed that a Quality Review Specialist reviewed her claim and noticed that the increased amount should have been effective in February 2016. She was told that the error would be corrected. However, in the October 2017 notification letter, she was informed that since her increased apportionment claim was not received on the standard VA form until December 2016, that was the earliest date that the increased apportionment could be assigned. Based on the above, the Board finds that a request for application for an increase in apportionment was received by VA on February 17, 2016. As this communication was neither submitted through a VA web-based electronic claims application system, on a prescribed VA intent to file form, or an oral intent communicated to VA personnel recording of writing, the February 17, 2016 communication does not meet the requirements of an intent to file a claim under 38 C.F.R. § 3.155(b). Nevertheless, VA clearly failed to provide the appellant with the appropriate form to file a claim for an increase in her apportionment. The requirement that VA shall furnish the form leaves no discretion on the part of VA. Simply put, VA must send the form to the claimant. 38 C.F.R. § 3.155(a). Considering all the evidence of record, the VA's failure in its duty to assist in February 2016, and giving the appellant the benefit of the doubt, the Board finds that she would have completed and submitted the same information on the proper form earlier than December 2016. The first day of the month following the month in which the appellant's claim for an apportionment was received is the proper effective date of the apportionment award in this case. 38 C.F.R. § 3.400(e)(1). The appellant's first apportionment claim was received on February 17, 2016, as such March 1, 2016, is the earliest effective date permitted by law. As VA did not comply with its regulatory duty to provide the appellant with the appropriate form to file a claim for an increased apportionment, the Board will consider March 1, 2016 as the date of the claim, which is the first day of the month after she expressed a desire to file for an increased apportionment. Accordingly, an effective date for the award of an increased apportionment of March 1, 2016, is granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cruz, K. 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.