Citation Nr: 21070308 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-10 403 DATE: November 23, 2021 ORDER Entitlement to an effective date prior to March 16, 2017 for the award of an aid and attendance allowance is denied. FINDINGS OF FACT 1. On January 29, 2016, the surviving spouse submitted an Intent to File for survivor's pension benefits. 2. On March 16, 2017, more than one year after receipt of the Intent to File, the surviving spouse submitted a completed claim for an aid and attendance allowance. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 16, 2017 for the award of an aid and attendance allowance have not been met. 38 U.S.C. § 1541, 5110; 38 C.F.R. § 3.23, 3.155, 3.160, 3.351, 3.352, 3.400, 3.402. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1942 to November 1945. He died in February 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 decision which granted survivor's pension benefits effective January 27, 2017, payable at the aid and attendance rate effective March 16, 2017. The Veteran's surviving spouse died in June 2019, during the pendency of her appeal for an earlier effective date for the award of her aid and attendance allowance. The Appellant's son has been granted substitution. In August 2021, the Appellant testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. A copy of the transcript is of record. Entitlement to an effective date prior to March 16, 2017 for the award of an aid and attendance allowance. The Appellant contends that an earlier effective date is warranted for the award of an aid and attendance allowance. Specifically, he contends that the effective date for the aid and attendance allowance should be January 29, 2016, the date VA received an Intent to File. Survivor's pension benefits are generally available for surviving spouses as a result of a veteran's nonservice-connected death. 38 U.S.C. § 1541(a). A higher rate of pension is available for a surviving spouse who is in need of regular aid and attendance or housebound. 38 U.S.C. § 1541(d)(1); 38 C.F.R. § 3.23(d)(2). Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. Such need exists when the surviving spouse (1) is blind or so nearly blind at to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less, or (2) is a patient in a nursing home because of mental or physical incapacity, or (3) establishes factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(a)(5),(b),(c). Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Awards of aid and attendance benefits for a surviving spouse will be effective on date of receipt of claim or date entitlement arose whichever is later. However, when an award of DIC or pension based on an original or supplemental claim is effective for a period prior to date of receipt of the claim, any additional DIC or pension 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). See also 38 U.S.C. § § 5110(d). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form; and the amendments implemented the concept of an intent to file a claim for benefits. A claimant may indicate a desire to file a claim for benefits by submitting an intent to file claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form. If VA receives a complete application form appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b), (d). An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155(b)(2). VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). 38 C.F.R. § 3.155(b)(6). Only one complete claim for a benefit (e.g., compensation, pension) may be associated with each intent to file a claim for that benefit, though multiple issues may be contained within a complete claim. 38 C.F.R. § 3.155(d). A complete claim is received when VA receives a submission of an application form prescribed by the Secretary that (1) provides the name of the claimant, the relationship to the veteran, and sufficient service information for VA to verify the claimed service, if applicable, (2) is signed by the claimant or a person legally authorized to sign for the claimant, (3) identifies the benefit sought, (4) provides a description of any symptom(s) or medical condition(s) on which the benefit is based to the extent the form prescribed by the Secretary so requires, and (5) for nonservice-connected disability or death pension and parents' dependency and indemnity compensation claims, provides a statement of income to the extent the form prescribed by the Secretary so requires. 38 C.F.R. § 3.160(a)(1)-(5). If an incomplete claim application is received, the Secretary will notify the claimant of the information necessary to complete the application form. If a complete claim is submitted within one year of receipt of such incomplete application form, VA will consider it as filed as of the date VA received the incomplete application form that did not meet the standards of a complete claim. 38 C.F.R. § 3.155(c). In the event that VA receives both an intent to file a claim and an incomplete application form before the complete claim is filed, the complete claim will be considered filed as of the date of receipt of whichever was filed first, provided it is perfected within the necessary timeframe, but in no event will the complete claim be considered filed more than one year prior to the date of receipt of the complete claim. 38 C.F.R. § 3.155(d). Turning to the evidence of record, on January 29, 2016, the surviving spouse filed a VA Form 21-0966, Intent to File, and checked the box indicating that she intended to file for survivor's pension benefits. The form clearly stated that if VA received a completed application for the selected general benefit within one year of filing the Intent to File, VA would consider the completed application filed as of the date the Intent to File was received. However, only the first completed application for each selected general benefit received after filing the Intent to File would be considered filed as of the date of receipt of the Intent to File. Responsive to this submission, on February 1, 2016, VA acknowledged receipt of the intent to file for survivor's benefits. The letter notified the surviving spouse that she would have to file a completed claim within a year in order to receive benefits from the date of her filing of an intent to file. The letter then informed the surviving spouse of the need to submit a completed VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits, with a link to the VA website. The letter informed the surviving spouse that no further action would be taken until a completed application was received. On January 27, 2017, VA received an unsigned VA Form 21-534EZ, Application for DIC, Death Pension, and/or Accrued Benefits. Under the section on medical expenses, the surviving spouse listed fees associated with her assisted living facility, and she submitted a letter from B.C.G. Assisted Living stating that she was a resident since February 2015, the total monthly cost of her care, and that the facility provided bathing, dressing, grooming, housekeeping, laundry, medication management, and more to the surviving spouse. VA notified the surviving spouse in a March 2017 letter that her pension claim was considered informal because her VA Form 21-534 was unsigned. The letter informed the surviving spouse that if a completed form was received within one year of the date of the letter, VA may be able to pay benefits from the date of receipt of the informal claim. On March 16, 2017, the surviving spouse submitted a completed VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. On March 20, 2017, in response to VA's March 2017 letter that her application for pension benefits was incomplete, the surviving spouse submitted a signed VA Form 21-534. In an April 2017 rating decision, VA granted an aid and attendance allowance, effective March 16, 2017, the date of receipt of the completed VA Form 21-2680. In a May 10, 2017 decision notification letter, VA granted survivor's pension benefits at the aid and attendance rate, effective March 16, 2017. Congressional correspondence received in May 2017 reflects that the surviving spouse questioned why the effective date did not extend back to a January 27 Intent to File. The Board notes that surviving spouse did not submit a January 27 Intent to File; rather, the surviving spouse submitted her Intent to File on January 29, 2016, and her incomplete application for survivor's pension benefits on January 27, 2017. In a May 17, 2017 decision notification letter, VA granted survivor's pension benefits effective January 27, 2017, and with the aid and attendance allowance effective March 16, 2017. In a November 2017 notice of disagreement, the surviving spouse asserted that survivor's pension at the aid and attendance rate should be effective January 29, 2016. In a December 2017 statement of the case (SOC), VA explained that it received the surviving spouse's Intent to File (VA Form 21-0966) on January 29, 2016. The general benefit claimed was pension. The form notes that a completed application must be filed within one year and only the first completed application will be considered as filed as of the date of receipt of the intent to file claim form. The completed claim form for survivor's pension was received January 27, 2017. The SOC stated that the surviving spouse's completed pension application is considered to have been filed January 29, 2016 since it was received within a year of the Intent to File form and it was the first completed application received. The claim for aid and attendance was not received until March 16, 2017, more than a year after the Intent to File form was received and it was the second completed application that was filed. Based on this evidence, VA denied an earlier effective date for the aid and attendance allowance. Based on a review of the evidence of record, the Board finds that entitlement to an effective date prior to March 16, 2017 for the aid and attendance allowance is not warranted. Here, the surviving spouse submitted her Intent to File for survivor's pension benefits on January 29, 2016. An incomplete claim for survivor's pension benefits was received on January 27, 2017, within one year of the Intent to File. While the January 27, 2017 claim was incomplete, the surviving spouse "cured" this defect by filing a complete, signed claim in March 2017. As stated in the December 2017 SOC, VA considers the surviving spouse's claim for survivor's pension benefits to be filed as of the date of the January 29, 2016 Intent to File. However, the completed claim for an aid and attendance allowance was not received until March 16, 2017, more than one year after the January 29, 2016 Intent to File. Furthermore, it was the second completed application to be filed by the surviving spouse. Therefore, the effective date for the aid and attendance allowance is the date of receipt of claim or the date entitlement arose, which is later. Here, the date of receipt of the surviving spouse's March 2017 aid and attendance claim is later than the date her entitlement arose. As the date of her March 2017 claim is the later date, it is from this date that she is entitled to the aid and attendance allowance and it is from this date that the surviving spouse is in receipt of the aid and attendance allowance. As such, an effective date prior to March 16, 2017 for the award of an aid and attendance allowance is not warranted. The Board acknowledges evidence received on January 27, 2017, showing that the surviving spouse needed aid and attendance, including the assisted living fees noted on her incomplete VA Form 21-534EZ and the letter from her assisted living facility. However, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Unfortunately, the surviving spouse did not submit the appropriate form to claim aid and attendance until March 2017. The Board has considered whether this evidence rises to the level of an intent to file, but finds that it does not, as it does not meet the requirements as specified 38 C.F.R. § 3.155(b)(1)(i-iii). The evidence was not a saved as an electronic application, written on a prescribed intent to file form claim, or orally communicated to designated VA personnel. Rather, the Board finds this evidence indicated a desire to file for aid and attendance benefits and is, at most, a request for an application form for benefits under 38 C.F.R. § 3.155(a). The Board acknowledges the exceptions for effective dates of entitlement to aid and attendance under 38 C.F.R. §§ 3.402(c); however, those exceptions are not applicable in this instance. Here, the effective date for the award of aid and attendance is the date of the claim and there is no award of retroactive pension benefits, such as the case when a survivor's pension claim is filed within one year of a veteran's death. As there is no retroactive award of pension benefits, it follows that aid and attendance cannot be awarded as part of a retroactive award. 38 C.F.R. § 3.402(c)(1); see also Nailos v. McDonough, No. 19-0517 (2021 U.S. App. Vet. Claims LEXIS 1424, August 10, 2021) (holding that 38 C.F.R. § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the DIC claim). Additionally, the evidence does not show, nor does the Appellant contend, that she departed from a hospital, institutional or domiciliary care at VA's expense. Thus, the exceptions for effective dates of entitlement to aid and attendance under 38 C.F.R. §§ 3.402(c) are not applicable. The Board is sympathetic to the Appellant's contentions regarding the circumstances surrounding the surviving spouse's application for survivor's pension benefits and that the surviving spouse had difficulty obtaining the necessary documents to support her aid and attendance claim. However, the Board is bound by the specific legal standard governing effective dates and is unable to grant benefits on the basis of equity. See 38 U.S.C. §§ 503, 7104. (Continued on next page) Because there is no legal basis by which an effective date for the grant of entitlement to an aid and attendance allowance earlier than March 16, 2017 can be granted, an earlier effective date is not warranted. See 38 C.F.R. § 3.400(b)(2)(i). When the law, rather than the facts, is dispositive, the benefit-of-the-doubt provisions as set forth in 38 U.S.C. § 5107(b) do not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the claim must be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.