Citation Nr: 1761154
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-32 398 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines

THE ISSUE

Entitlement to an effective date earlier than December 30, 2010, for the grant of aid and attendance allowance for the Veteran’s surviving spouse, for accrued benefits purposes.

ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1942 to May 1942, with prisoner of war (POW) status from April 1942 to May 1942. The Veteran died in 1942. His surviving spouse, J.C.C., died in 2011. The appellant is the daughter of the Veteran and his wife.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.

FINDINGS OF FACT

In August 2008, the RO denied entitlement to aid and attendance; no appeal was filed and no additional evidence was submitted within one year.

CONCLUSION OF LAW

The criteria for an effective date prior to December 30, 2010, for the grant of entitlement to aid and attendance have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

VA has satisfied its duties under the Veteran’s Claims Assistance Act of 2000 to notify and assist. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The request for an earlier effective date is a “downstream” issue from the grant of the benefit sought, which was initiated by a notice of disagreement (NOD). Once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what “evidence [is] necessary to establish a more favorable decision with respect to downstream elements.” Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The appellant has been provided the required statement of the case (SOC) discussing the reasons and bases for not assigning an earlier effective date and citing the applicable statutes and regulations.

VA’s duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The appellant has not identified any outstanding records needing to be obtained. As to the claim decided, the duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

The case was previously remanded in September 2014 in order to clarify with the appellant whether she wished to continue with her claim, whether she had any new evidence to submit, whether she wished to have a hearing, and to issue the appellant a Statement of the Case (SOC). The appellant was contacted and expressed that she wished to continue her claim and had no new evidence to submit. The appellant was issued an SOC in August 2016, and expressed her desire for a hearing in her August 2016 VA Form 9. However, the appellant withdrew her request for a hearing in February 2017 correspondence. Therefore, there is substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

All necessary development of the downstream earlier effective date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the appellant.

Earlier Effective Date

J.C.C.’s claim for entitlement to aid and attendance was granted in March 2011, effective December 30, 2010. The Veteran’s surviving child contends that she is entitled to an earlier effective date.

In general, an award of aid and attendance or housebound benefits for a surviving spouse will be effective from the date of receipt of claim or date entitlement arose whichever is later. 38 C.F.R. § 3.402 (c)(1). However, when an award of dependency and indemnity compensation or pension based on an original or reopened claim is effective for a period prior to date of receipt of the claim, any additional dependency and indemnity compensation or pension 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. Additionally, the date of departure from hospital, institutional or domiciliary care at VA expense may be constitute the date of receipt of the claim. 38 C.F.R. § 3.402 (c)(2).

The term “application,” while not defined in the statute, is broadly construed by regulation to include “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.”
38 C.F.R. § 3.1 (p). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157 (b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155 (a). See Brannon v. West, 12 Vet. App. 32, 34 (1998).

Appellate review of a rating decision is initiated by a Notice of Disagreement and perfected by filing a completed Substantive Appeal (VA Form 9) once a Statement of the Case has been furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200 Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R.
§§ 3.160 (d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104 (a).

Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). When a rating decision is final, only a request for a revision premised on CUE could result in the assignment of earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. Id.

The Veteran’s surviving spouse, J.C.C., had been receiving dependency and indemnity compensation since 1942-the date of the Veteran’s death. Therefore, the provisions regarding retroactive aid and attendance based on an award of retroactive dependency and indemnity compensation are not applicable. There is also no evidence J.C.C. was hospitalized, institutionalized or in domiciliary care at VA expense. This appeal hinges upon the date J.C.C. filed a claim for aid and attendance.

J.C.C., first sought entitlement to aid and attendance in March 2000, which was denied in May 2000. J.C.C. did not file a timely notice of disagreement and therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. J.C.C. again sought entitlement to aid and attendance in May 2008, which was denied in August 2008. Again, J.C.C. did not file a timely notice of disagreement and therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On December 30, 2010, J.C.C. filed another claim for aid and attendance, but died in 2011 prior to adjudication of the claim. The claim was granted in March 2011, effective December 30, 2010. The Veteran’s surviving child contends that she is entitled to an earlier effective date for entitlement to aid and attendance.

The claim will be denied. The first indication in the record that J.C.C. sought entitlement to aid and attendance allowance is in her March 17, 2000 correspondence. Prior to this claim, J.C.C. made no statement in which she asserted the need for aid and attendance allowance.

Even with a liberal reading of J.C.C.’s post-rating decision communications, the Board finds that none rise to the level either of a notice of disagreement, or a motion for reconsideration. To the extent that the focus is on the claimant’s intent, there is no indication that J.C.C. was seeking readjudication of her appeals after either the May 2000 or the August 2008 rating decisions.

The earliest possible effective date for the grant of entitlement to aid and attendance allowance is December 30, 2010, the date of the claim. Based on this finding, the appeal for an effective date earlier than December 30, 2010, for entitlement to aid and attendance allowance must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.402(c).

ORDER

An effective date earlier than December 30, 2010, for the grant of aid and attendance allowance is denied.

____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s