Citation Nr: A21020603 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 210823-181063 DATE: December 28, 2021 ORDER Entitlement to an effective date of August 9, 2019, for entitlement to aid and attendance allowance for Marjorie Miles, is granted. FINDINGS OF FACT 1. On August 9, 2019, the appellant, who is the surviving spouse of the Veteran, submitted an Intent to File seeking pension benefits. 2. On June 11, 2020, within one year of receipt of the Intent to File, the appellant submitted a completed claim for Dependency and Indemnity Compensation (DIC) or death pension, seeking survivor's pension benefits. CONCLUSION OF LAW The criteria for entitlement to an effective date of August 9, 2019, for entitlement to aid and attendance allowance for Marjorie Miles have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 3.402. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1943 to January 1946 during the World War II Era. The Veteran passed away in August 2015 and the appellant is his surviving spouse. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law, which went into effect in February 2019, creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The framework applies to all decisions issued after the effective date of the legislation. 38 C.F.R. §§ 3.2400(a)(1), 19.2(a). In a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted special monthly pension based on the need for aid and attendance, effective June 11, 2020. In May 2021, the appellant submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the July 2020 rating decision. In July 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2020 rating decision. The appellant timely appealed to the Board and selected the evidence review docket. 38 C.F.R. §§ 3.2500(a)(1)(ii), 20.202, 20.203. Therefore, the Board may only consider the evidence of record at the time of the July 2020 rating decision, as well as any evidence submitted by the appellant or her representative with or within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. Entitlement to an effective date of August 9, 2019, for entitlement to aid and attendance allowance for Marjorie Miles The appellant contends that she is entitled to an earlier effective date than June 11, 2020, for the grant of survivor's death pension with aid and attendance. Specifically, the appellant asserts that the effective date should be August 9, 2019, the date VA received her Intent to File. See May 2021 VA Form 20-0996. Generally, an award of pension, compensation, or dependency and indemnity compensation (DIC) to or for a surviving spouse, to include aid and attendance and homebound benefits, will be assigned an effective date based upon the date of receipt of claim or the date entitlement to that benefit arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.402. A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a 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 prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Here, the effective date for the appellant's award of special monthly pension based on the need for aid and attendance is assigned as of June 11, 2020, which is the date of receipt of the claim for special monthly pension for aid and attendance. The record reflects that, approximately 10 months prior, VA received an Intent to File on August 9, 2019. VA also received, on the same date, a VA Form 21-22 (appointment of veterans service organization as claimant representative), indicating that the appellant was the Veteran's spouse. Although the "Pension" box was marked on the Intent to the File form instead of the "Survivor's Pension and/or Dependency and Indemnity Compensation (DIC)" box, VA subsequently sent the appellant a notice letter on August 16, 2019, stating that it had received the Intent to File, and noting that the appellant indicated her intent to file a claim for survivor benefits. Subsequently, in February 2020, the appellant submitted private medical records pertaining to herself as the patient. These records indicate a diagnosis of macular degeneration and chronic poor vision. Thereafter, on June 11, 2020, the appellant submitted multiple records, to include the application for DIC benefits; a VA Form 21-2680 (examination for housebound status or permanent need for regular aid and attendance); and a death certificate noting that the Veteran had died in August 2015. The appellant also submitted a VA Form 21-0779 (request for nursing home information in connection with claim for aid and attendance) on June 11, 2020, indicating that the appellant was admitted into a nursing home in 2014. The AOJ then issued the July 2020 rating decision on appeal, which also proposed a finding of incompetency to handle disbursement of funds. Subsequently, an August 2020 rating decision found that the appellant is not competent to handle disbursement of funds. On the code sheet to the July 2020 rating decision, the AOJ noted that because the appellant selected "Pension" and not "Survivor's Pension" on her intent to file form, that the form could not be used as an intent to file for survivor's pension. The appellant also submitted, within 90 days from receipt of the VA Form 10182, a statement contending that private medical records show that her vision was impaired at the time of the submission of the Intent to File, and that VA only sent a separate notice regarding the error in interpreting the nature of the Intent to File on February 5, 2021, months after the rating decision on appeal was issued. See August 2021 correspondence. The AOJ was following a provision in the VA Adjudication Procedures Manual (M21), which states that a survivor's intent to file on which either compensation or pension is selected as the benefit sought cannot be applied to a claim for survivor's pension or DIC, and that a survivor's intent to file form with compensation or pension selected should be handled as an incomplete intent to file. M21-1 II.iii.2.A.1.e. The M21 is not binding on the Board. Overton v. Wilkie, 30 Vet. App. 257 (2018). Having considered the evidence of record, and after affording the appellant the benefit of the doubt, the Board finds that an earlier effective date of August 9, 2019, is warranted. The completed claim for survivor's pension/DIC was received in June 2020, which is within one year of receipt of the August 2019 Intent to File. Moreover, when the August 2019 Intent to File is considered in the context of the totality of the evidence, which indicates that the appellant was visually and cognitively impaired at the time of its filing, and that she relied on the erroneous August 2019 notice indicating that she had filed a claim for survivor benefits, which was not addressed in a separate notice until February 2021, several months following the rating decision on appeal, this suggests that August 9, 2019, is the earliest date that it can be construed that an intent to file a claim seeking survivor's pension benefits was received. Based on the above, the Board has resolved reasonable doubt in the appellant's favor to find that the appellant is entitled to an effective date of August 9, 2019, but no earlier, for the award of survivor's pension benefits with aid and attendance. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.402. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.