USCAVC No. 19-0517 Joan Nailos, Appellant, V. Denis McDonough On Appeal from BVA Argued June 17, 2021, Decided on August 10, 2021
Issue EED Aid and Attendance
The appellant, Joan Nailos, surviving spouse of the veteran, William F. Nailos, appeals through counsel (1) an October 22, 2018, Board of Veterans’ Appeals (Board) decision that denied an effective date prior to May 30, 2017, for the award of aid and attendance benefits. Record (R.) at 2-9. (2) This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court to determine under what circumstances 38 C.F.R. § 3.402(c)(1) permits an effective date for the award of increased dependency and indemnity compensation (DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid and attendance benefits. (3) For the following reasons, the Court concludes that § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the date of the DIC claim, i.e., there is a retroactive award of DIC. The Court will thus affirm the Board’s decision.
In the October 2018 decision on appeal, the Board first acknowledged that it had previously denied entitlement to an effective date prior to November 2009 for the award of DIC and that the Court had affirmed that decision. R. at 4. Turning to the issue of an effective date prior to May 2017 for the award of aid and attendance benefits, the Board acknowledged the appellant’s contention that she was entitled to a June 2015 effective date based on when she was injured and became disabled. Id. After explaining the rules governing the effective date for an award of aid and attendance benefits, the Board concluded that the exception found in § 3.402(c)(1) was inapplicable. R. at 5. The Board explained that “the [a]ppellant has been receiving DIC since November 2009; therefore, the provisions regarding retroactive aid and attendance based on an award of retroactive DIC are not applicable.” Id. Applying the general effective date rule, the Board found that the appellant had filed an intent to file a claim on May 30, 2017, and that “[t]he record does not contain any communication from the [a]ppellant that may be reasonably construed as a formal claim or an intent to file a claim for regular aid and attendance received by VA prior to this date.” R. at 6. The Board then determined that “[e]ven assuming she met the criteria for regular aid and attendance as early as June 2015, she did not submit a claim for benefits with VA at that time, and the date the claim was received by VA is the later of the two dates.” R. at 7. Accordingly, the Board concluded that there was “no basis for awarding an earlier effective date.” Id.