Citation Nr: A21017945 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 210824-181365 DATE: November 5, 2021 ORDER Entitlement to payment of special monthly pension based on the need for regular aid and attendance on the basis of substitution is denied. FINDINGS OF FACT 1. At the time of the Veteran's death, he was not entitled to any benefits which were due and unpaid. 2. A claim for retroactive benefits was not received by VA within one year from the date on which the Veteran became permanently and totally disabled. CONCLUSION OF LAW The criteria for entitlement to payment of special monthly pension based on the need for aid and attendance have not been met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The decision on appeal which denied accrued benefits was issued in July 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The July 2021 decision also granted substitution of the surviving spouse as the Appellant for the purpose of continuing the appeal. Therefore, the Board finds that the Appellant is appropriately recognized as the substitute-claimant in this case. 38 U.S.C. § 5121A. Entitlement to payment of special monthly pension based on the need for aid and attendance Accrued benefits are periodic payments to which a payee was entitled that were due and unpaid at the time of his or her death, which may be paid to the Veteran's surviving spouse, child, or dependent parents. 38 C.F.R. § 3.1000 (a)(1)-(2). After the death of a claimant, if there was a claim or appeal pending at the time of death, then an eligible person may apply for accrued benefits, as discussed above. Alternatively, where the claimant at issue died after October 10, 2008, as in this case, an eligible person may apply to be a substitute claimant in order to complete processing of the claim or appeal and obtain benefits. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010 (a). In either case, the application must be received within one year after the death of the claimant, and the applicant must be an eligible person. Id. An application to be a substituted claimant also may only be made by a person eligible for accrued benefits under 38 C.F.R. § 3.1000 (a). 38 C.F.R. § 3.1010 (a). Prior to his death, the Veteran submitted a claim for entitlement to nonservice-connected pension benefits. As noted above, the Appellant has been substituted in the claim. The Appellant and representative contend in an August 2021 statement that the Veteran was factually entitled to pension on January 27, 2020, two days prior to his death. The Appellant and representative have also asserted that retroactive benefits are warranted one year prior to the Veteran's claim for benefits due to liberalizing law. The record shows that the Veteran submitted a Veteran's Application for Compensation and/or Pension (VA Form 21-526), identifying a claim for pension benefits, date stamped as received on January 27, 2019. This was associated with the record along with medical evidence showing a factual need for regular aid and attendance, income information, and evidence showing that the Veteran had been admitted to a nursing home in November 2019. A Certificate of Death shows that the Veteran died on January [REDACTED], 2019, the same month as the pension claim was received. The record does not include any documents that would constitute an earlier claim for nonservice-connected pension. The Board finds that there was a pending and unadjudicated pension claim at the time of the Veteran's death. However, if pension benefits had been awarded, the earliest date of payment of such a running award of monetary benefits would have been the first day of the calendar month following the effective date, which in this case was February 1, 2020. See 38 C.F.R. § 3.31. Because the Veteran died in January 2020, had he been awarded special monthly pension, his benefits would have been terminated the last day of the month in which his death occurred. See 38 C.F.R. § 3.500 (g)(2)(ii). Because an award of pension would have been terminated prior to the date on which such award would have been payable to the Veteran, at the time of his death, the Veteran was not entitled to any benefits which were due and unpaid. While the Appellant's representative attempts to distinguish between the date of the Veteran's entitlement to a benefit and the date of the award of payment of such benefit, the law only allows for periodic payments to which a payee was entitled that were both due and unpaid at the time of death 38 C.F.R. § 3.1000 (a)(1)-(2). At the time of the Veteran's death, no benefits were due to the Veteran, because such benefits would not have been payable until February 1, 2020 and the benefits were not due to the Veteran effective in the month of his death. The Board finds that an award of special monthly pension prior to January 27, 2019 is not warranted. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As noted above, the earliest effective date available for an award of pension would be the date VA received the Veteran's claim for benefits. The record includes a Veteran's Application for Compensation and/or Pension date stamped as received on January 27, 2019. There are no documents of record dated prior to the claim that can be construed as a claim for pension. Therefore, an earlier effective date is not warranted. In a December 2020 statement, the Appellant and representative indicated that retroactive benefits were warranted for the year prior to the Veteran's claim due to liberalizing law. With regard to payment of pension benefits, if, 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 willful misconduct, was so incapacitating that it prevented him/her from filing a disability pension claim for the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. See 38 C.F.R. § 3.400 (b)(1)(ii)(B). Here, in the December 2020 statement, the Appellant and representative contend that the Veteran's retroactive benefits were warranted for the one-year period prior to the date of his claim, but submitted a statement signed by the Veteran's physician, indicating that the Veteran required assistance with his activities of daily living from September 2019. To the extent that the Veteran could have been considered permanently and totally disabled and in need of regular aid and attendance from September 2019, he did not, within a year of that incident, file a claim for a retroactive award. See 38 C.F.R. § 3.400(b)(1)(ii)(b). Instead, the record shows that he filed a claim in January 2020 without request for retroactive benefits, and his spouse did not submit her request for retroactive benefits until December 2020, after the Veteran's death and more than one year after the date of his September 2019 disability. Accordingly, this regulatory exception to the general rules governing effective dates for the payment of monetary benefits is not for application in this case. Moreover, a claim for a special monthly pension under liberalizing law was not received prior to the Veteran's death. Therefore, it was not pending before VA at the time of the Veteran's death. For these reasons, the Board finds that at the time of the Veteran's death, he was not entitled to any benefits which were due and unpaid, and the claim for entitlement to payment of special monthly pension based on the need for regular aid and attendance on the basis of substitution is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.