Citation Nr: 21011305 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-38 830 DATE: March 1, 2021 ORDER An effective date earlier than October 13, 2015 for Special Monthly Pension (SMP) based on the need for regular aid and attendance (A&A) is denied. FINDING OF FACT The application for SMP based on the need for regular A&A was received on October 13, 2015. CONCLUSION OF LAW The criteria are not met for entitlement to an effective date earlier than October 13, 2015 for the award of SMP based on the need for regular A&A. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 3.401.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1946 to December 1967. He died on October [REDACTED], 2009. His surviving spouse, so widow, filed a formal claim for Dependency and Indemnity Compensation (DIC), Death Pension, and/or Accrued Benefits for Regular A&A on October 13, 2015. During the pendency of this claim, however, she, too, died. The Appellant is her surviving child. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant testified in support of this claim for an earlier effective date during a hearing in February 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. An effective date earlier than October 13, 2015 for SMP based on the need for regular A&A The Appellant contends that an effective date earlier than October 13, 2015 is warranted for the award of SMP based on the need for regular A&A. He asserts the effective date should be April 1, 2015, the date his mother moved into the nursing home or July 29, 2015, the date the Examination for Housebound Status or Permanent Need for Regular A&A occurred. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, DIC, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a).   For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim – provided "[a]ny communication or action, indicating an intention to apply for one or more benefits . . . [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (2014). 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 "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). Effective March 24, 2015, the law no longer allows for informal claims and the pertinent regulation allows a claimant to submit an 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 1 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 "[w]ritten 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). Here, on July 29, 2015, VA received the report of an Examination for Permanent Need for Regular A&A. It was noted that the Appellant’s mother resided in an assisted living facility and required medication management, assistance in bathing, and assistance with mobility. The Appellant’s mother was noted as being mentally, psychologically, and physically incapacitated. On August 18, 2015, VA notified the Appellant that VA regulations required that a claim for benefits must be submitted on a standardized form. VA duly sent the standardized forms to the Appellant that needed to be completed and returned. On October 13, 2015, VA received the Appellant’s formal claim in the manner required (i.e., on the correct form). VA granted entitlement to SMP based on the need for regular A&A effective from October 13, 2015, so as of the date that VA had received the claim on the form and in the manner prescribed. See December 2015 rating decision. Therefore, the Board must determine whether application of the liberalizing law rule is warranted in this case, which would allow for an effective date earlier than October 13, 2015. On December 27, 2001, the Veterans Education and Benefits Expansion Act of 2001 was signed into law. Section 206 of the Act amended 38 U.S.C. § 1502(a) by modifying the qualifications for being considered "permanently and totally disabled." Specifically, under the 2001 amendment to 38 U.S.C. § 1502(a), a person shall be considered permanently and totally disabled if he/she: (1) is a patient in a nursing home for long-term care due to disability; (2) is "[d]isabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner"; (3) is unemployable as a result of disability that is reasonably certain to continue throughout his life; or (4) is suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation, or a disease or disorder that is determined by the Secretary to justify a determination that individuals suffering from such a disease or disorder are permanently and totally disabled. The amendment to 38 U.S.C. § 1502(a) went into effect as of September 17, 2001. Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 206 Note, 115 Stat. 976 (2001). The Board finds that 38 U.S.C. § 1502(a), as amended by Section 206 of the Veterans Education and Benefits Expansion Act of 2001, is a liberalizing law. Prior to the 2001 amendment, one could only be considered permanently and totally disabled if unemployable as a result of disability that was reasonably certain to continue throughout life, or if suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation, or a disease or disorder that was determined by the Secretary to justify a determination that individuals suffering from such a disease or disorder were permanently and totally disabled. See 38 U.S.C. § 1502(a). The amendment to 38 U.S.C. § 1502(a) allowed claimants to establish permanent and total disability through evidence of being a patient in a nursing home for long-term care because of disability or evidence that the Commissioner of Social Security found the claimant to be disabled for the purposes of any benefits administered by the Commissioner, which provided new ways for establishing entitlement to pension benefits. Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103 (codified as amended at 38 U.S.C. § 1502(a) (2012)). The 2001 amendment to 38 U.S.C. § 1502(a) therefore effectuated a substantive change in law or regulation and created new bases for entitlement to nonservice-connected pension benefits, and it is properly construed as a liberalizing law. See Routen v. West, 142 F.3d 1434, 1441-42 (Fed. Cir. 1998) (quoting Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993)); see also VAOPGCPREC11-1999 at 6 (September 2, 1999). As the amendment to 38 U.S.C. § 1502(a) is a liberalizing law, for the Appellant to be eligible for a retroactive payment of SMP benefits, the evidence must show that his mother met all eligibility criteria for the liberalized benefit on September 17, 2001, the effective date of the liberalizing law. See 38 C.F.R. § 3.114(a). Additionally, the evidence must establish that such eligibility existed continuously from that date to the date of the claim or administrative determination of entitlement. See id. The most probative evidence of record does not show that the Appellant’s mother was a patient in a nursing home for long-term care due to disability, disabled as determined by the Commissioner of Social Security, unemployable as a result of disability reasonably certain to continue throughout her life, or suffering from a disability that would render it impossible for the average person to follow a substantially gainful occupation at the time of the September 17, 2001 liberalizing law.   The Board has considered the Appellant’s argument that the submission of the July 2015 Examination for Housebound Status or Permanent Need for Regular A&A demonstrates an intent to file a claim and entitlement should be granted effective the date his mother entered into the nursing home on April 1, 2015; however, even if entitlement to SMP based on the need for regular A&A arose prior to October 13, 2015, the controlling date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Board also has considered the Appellant’s contention that VA had misplaced his original forms and requested that he re-submit the forms. See February 2016 Statement in Support of Claim on VA Form 21-4138. There is no indication in the record that an application had been misplaced owing to VA malfeasance or communication between the Appellant and VA regarding missing forms. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of administrative regularity to local regional office (RO) actions). That said, the next communication in the record after the August 2015 VA notification advising the Appellant that the claim must be on the standard form (owing to the change to this requirement and specificity of filing that had occurred just a relatively few months earlier, on March 24, 2015) was the return of the required standard form in October 2015. Accordingly, absent any other evidence to the contrary, the Board concludes that the claim was not first received until October 13, 2015, since only then was it filed in the manner that has been specified by the Secretary of the Agency (i.e., on the correct form).   In summary, the Appellant was not entitled to an effective date for SMP benefits based on the need for regular A&A earlier than October 13, 2015. An earlier effective date for these benefits under the liberalizing law cannot be granted and entitlement to an earlier effective date is not warranted otherwise. Accordingly, the preponderance of the evidence is against this claim of entitlement to an effective date prior to October 13, 2015 for the grant of SMP based on the need for regular A&A, and this claim consequently must be denied. Under the circumstances presented, the benefit-of-the-doubt doctrine does not apply because the preponderance of the evidence is unfavorable, not instead supportive of the claim or even in relative balance (equipoise). See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.