Citation Nr: A21018028
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 201215-187052
DATE: November 9, 2021

ORDER

An effective date of July 19, 2019, but no earlier, for grant of aid and attendance allowance for the appellant is granted.

FINDING OF FACT

The evidence indicates that VA received the appellant's signed Intent to File form for survivor's pension with aid and attendance on July 19, 2019, and submitted a formal application for aid and attendance within one year of her Intent to File form.

CONCLUSION OF LAW

The criteria for an effective date of July 19, 2019, but no earlier, for grant of aid and attendance allowance for the appellant have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155(b), 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1943 to December 1945. The Veteran passed away in February 2013, and the appellant is the Veteran's surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted aid and attendance allowance for the appellant, effective December 2, 2019.

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, also known as the Appeals Modernization Act (AMA). This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. 

In a December 2020 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the appellant timely appealed the decision to the Board for evidence submission review by a Veteran's Law Judge, and indicated that she would like to have the opportunity to submit additional evidence in support of her appeal within 90 days.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 

An effective date earlier than December 2, 2019 for grant of aid and attendance allowance

The appellant contends that an effective date earlier than December 2, 2019 for grant of aid and attendance is warranted.

Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

Effective on March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660 (Sept. 25, 2014). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim. 38 C.F.R. § 3.155(a). The VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection "will be the date of the informal claim." Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155).

Beginning March 24, 2015, the pertinent regulation allows a claimant to submit intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b) ("Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within one year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received."). However, if submitted in writing, intent to file must be on a standardized form. Id. at § 3.155(b)(1)(ii) (mandating that the claim must be "written on an intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted an intent to file a claim."). If not on a standardized Intent to File form, then any communication "is considered a request for an application form for benefits" and has no impact on effective dates, which is governed based upon when the formal claim is received. Id. at § 3.155(a).

Turning to the evidence of record, the appellant completed an VA 21-0966 Intent to File form, which was received by the VA on July 19, 2019. That day, VA sent a letter to the appellant acknowledging receipt of her Intent to File form, and requested that she complete a VA Form 21-534 EZ, Application for DIC, Death Pension, and/or Accrued Benefits within one year of from the date of the Intent to File form. 

On December 2, 2019, VA received the appellant's formal application for aid and attendance on VA Form 21-534 EZ. 

In the September 2020 rating decision, the RO granted entitlement to aid and attendance, effective December 2, 2019, based on the submission of the appellant's formal application. 

After review of the record, the Board notes that the appellant properly submitted a formal Intent to File form on July 19, 2019. Thereafter, on December 2, 2019, the appellant submitted a formal application via VA Form 21-534 EZ. Thus, the appellant submitted a formal application within one year after filing an Intent to File form. Therefore, an effective date of July 19, 2019, but no earlier, for grant of aid and attendance allowance is warranted.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kovacs, Associate 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.