Citation Nr: A21020342 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 211210-204595 DATE: December 21, 2021 ORDER An earlier effective date of April 16, 2020 for the grant of a special monthly survivor pension due to the need for aid and attendance is granted. FINDINGS OF FACT 1. The appellant filed an intent to file a claim for survivor special monthly pension benefits that was received by VA on April 16, 2020. 2. The appellant was not sent notification of a denial of benefits in September 2020. CONCLUSION OF LAW The criteria for an effective date of April 16, 2020 for a survivor's special monthly pension due to the need for aid and attendance are met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.155, 3.351, 3.352, 3.402. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1944 to November 1945, including service during World War II. He died in April 2010 and the appellant is his surviving spouse. The case is on appeal from a November 2021 decision. An effective date prior to May 18, 2021 for a survivor's pension due to the need for aid and attendance. Legal Criteria An award of pension to a surviving spouse for aid and attendance benefits will be effective the date the claim for that benefit was received or the date entitlement to that benefit arose, whichever is later. 38 C.F.R. § 3.402(c)(1). The regulation provides for two limited exceptions. When an award of pension benefits based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension benefits 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. Id. In addition, a claimant can submit an Intent to File a Claim for Compensation form 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). A special monthly pension (SMP) is warranted if there is a need for the aid and attendance of another person as defined by 38 C.F.R. § 3.352. 38 C.F.R. § 3.351. Specifically, SMP benefits are warranted if the claimant is in need of regular aid and attendance. The need for aid and attendance is defined as helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.351. The claimant shall be considered to be in need of regular aid and attendance if the person is: blind or so nearly blind as 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 is a patient in a nursing home because of mental or physical incapacity; or, establishes a 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(c). Analysis The appellant filed an intent to file a claim for a survivor's pension that was received by VA on April 16, 2020. In July 2020, she filed a formal claim as well as evidence showing her income, unreimbursed medical expenses, and establishing the need for aid and attendance as defined by 38 C.F.R. § 3.352. Thereafter, the appellant resubmitted the completed application in May 2021. In September 2021, the RO granted a survivor's special monthly pension based on the need for aid and attendance is warranted effective the date the appellant resubmitted the application form in May 2021. In November 2021, the appellant filed a supplemental claim for an earlier effective date. In the decision on appeal issued later in November 2021, the RO stated that the appellant was sent notification of denial for the April 2020 claim in September 2020 and that the claim that was granted was filed in May 2021. The Board finds that an effective date of April 16, 2020 for the survivor's special monthly pension based on the need for aid and attendance is warranted. In this regard, the appellant submitted an intent to file on such date and submitted evidence establishing entitlement to such benefits in July 2021. While the RO states that the appellant's initial pension claim was denied in September 2020, the file does not include any such decision or the notification of denial that would have been mailed to the appellant pursuant to a denial in September 2020. The evidence shows that the appellant filed an intent to file a claim for survivor pension benefits that was received by VA on April 16, 2020 and she was not sent notification of a denial of benefits in September 2020. Therefore, an effective date of April 16, 2020 is warranted for the survivor's special monthly pension based on the need for aid and attendance. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.