Citation Nr: 21024661 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 18-28 892 DATE: April 23, 2021 ORDER Entitlement to an effective date prior to January 27, 2016 for the award of survivor’s pension with aid and attendance allowance is denied. FINDINGS OF FACT 1. The documents received from the appellant on May 29, 2015 cannot be considered an informal claim. From March 24, 2015 VA stopped recognizing informal claims that were not received by VA prior to March 24, 2015. 2. The documents received from the appellant on May 29, 2015 cannot be considered an intent to file as they were not on a VA Form VA Form 21-0966, were not a saved electronic application within a VA web-based electronic application system, and were not an orally communicated intent to file to VA personnel that was recorded in writing. 3. On January 27, 2016 VA received a claim for survivors’ pension on a VA Form 21-534EZ. CONCLUSION OF LAW The criteria for an effective date prior to January 27, 2016 for the award of survivor’s pension with aid and attendance allowance are not met. 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1945 to December 1945. He died in April 2009 and the appellant is his surviving spouse. The May 2016 rating decision on appeal granted the appellant survivor’s pension with aid and attendance allowance. The Department of Veterans Affairs (VA) Regional Office (RO) granted the benefit effective from January 27, 2016, the date of receipt of the appellant’s claim. The RO noted that January 27, 2016 was the date VA received a completed VA Form 21-534EZ (Application for DIC Death Pension, and/or Accrued Benefits) from the appellant. The statutory guidelines for the determination of an effective date of an award of pension are set forth in 38 U.S.C. § 5110. Generally, 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 appellant’s representative asserts that the appellant is entitled to an earlier effective date of May 29, 2015. At a March 2021 hearing the appellant’s representative pointed out that the appellant submitted an informal claim to VA on May 29, 2015. He noted that less than a year later he submitted the appellant’s completed VA Form 21-534EZ. He asserted that because the completed claim was received by VA less than a year after submission of the informal claim, pursuant to 38 C.F.R. § 3.155, the appellant is entitled to an effective date of May 29, 2015, the date of receipt of her informal claim. He maintains that VA acknowledged the appellant’s informal claim on two separate occasions, by VA letters dated June 8, 2016 and September 18, 2016. He asserted that since VA confirmed and acknowledged to the appellant that her informal claim had been accepted, she should be awarded an earlier effective date of May 29, 2015, the date VA received the appellant’s informal claim. The Board notes that effective March 24, 2015, VA amended its rules as to what constitutes a valid claim, requiring that claims be submitted on an application form prescribed by VA. 79 Fed. Reg. 57696 (Sept. 25, 2014); see also 38 C.F.R. §§ 3.1(p), 3.160. As the appellant’s purported informal claim was received after March 24, 2015, and was not on a prescribed form, the VA cannot consider it when assigning an effective date for survivors’ pension benefits with aid and attendance. In response to the May 29, 2015 submission the RO sent the appellant a September 17, 2015 letter informing her that her submission was not considered a claim and that regulations now require that all claims be submitted on a standardized form. The letter further informed the appellant that if she wished to file a claim for VA benefits she must submit either an intent to file form or a VA Form 21-534EZ claim form. Enclosed with the VA letter were copies of the appropriate forms, the VA Form 21-0966 (Intent to File) and VA Form 21-534EZ (Application for DIC Death Pension, and/or Accrued Benefits). No response was received from the appellant until January 27, 2016, when VA received a completed VA Form 21-534EZ (Application for DIC Death Pension, and/or Accrued Benefits) from the appellant. As noted above, in response to receipt of the completed claim form the RO granted the appellant aid and attendance allowance effective from January 27, 2016, the date of receipt of the appellant’s claim. The Board acknowledges that the RO also sent form letters to the appellant on June 8, 2015 and September 18, 2015 that are confusing and misleading. The June 8, 2015 VA letter stated that VA had received the appellant’s application for benefits. This letter is misleading as the appellant’s May 29, 2015 submission titled as an “informal claim” was not a completed application for benefits. The appellant and her representative have not asserted otherwise. The September 18, 2015 VA letter is incorrect as it states that VA received the appellant’s intent to file on May 28, 2015. This is incorrect as the May 28, 2015 documents (received by VA on May 29, 2015) cannot be considered an intent to file. This is because an intent to file is defined by VA in only three ways. To wit a: (i) saved electronic application within a VA web-based electronic claims application system prior to filing of a complete claim; (ii) written intent on prescribed intent to file a claim form; or (iii) oral intent communicated to designated VA personnel and recorded in writing. The documents received from the appellant on May 29, 2015 did not meet any of those requirements. Although the June 8, 2015 and September 18, 2015 VA letters are confusing and misleading, VA also sent the appellant the September 17, 2015 letter that accurately described the situation to the appellant. Thus, the appellant and her representative were on notice of the claim situation. While acknowledging that the appellant received confusing and incorrect information from VA, VA is not bound by erroneous information dispensed by a VA employee. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Rather, the Board is bound to follow VA’s statutes and regulations and, under those statutes and regulations, has no authority to grant benefits on an equitable basis. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (even where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute). Furthermore, as noted above, VA also sent the appellant an accurate letter which alerted her that further action was necessary if she wished to file a claim. The Board notes that the appellant’s representative has asserted that in other matters involving applications for VA benefits if the claimant erroneously files a form that is not appropriate the VA notifies the claimant as well as gives them the information and advice on how to fix the problem. He asserted that no such notice was ever received by the appellant. The Board disagrees and points out that the September 17, 2015 VA letter to the appellant provided this information. Since prior to January 27, 2016 the appellant did not file the correct, prescribed claim form in order to claim entitlement to survivors’ pension benefits with aid and attendance, and she did not file an intent to file form, the appropriate effective date for her award of survivors’ pension with aid and attendance is the date that her completed VA Form 21-534EZ was received, that is on January 27, 2016. See 38 C.F.R. §§ 3.1(p), 3.152(a), 3.155, 3.402. The Board acknowledges the assertion that the “informal claim” documents received on May 29, 2015, should be deemed an intent to file form; however, the regulations make clear that an intent to file must be submitted in one of three specific ways. The May 29, 2015 documents do not meet any of those requirements and there is no assertion or evidence to establish that prior to January 27, 2016, the appellant submitted a saved electronic application within a VA web-based electronic application system or that she orally communicated an intent to file to VA personnel that was recorded in writing. In sum, the Board finds that the preponderance of the evidence is against an effective date prior to January 27, 2016 for the grant of survivors’ pension benefits with aid and attendance, and the appeal is denied. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.