Citation Nr: 0606628 Decision Date: 03/08/06 Archive Date: 03/23/06 DOCKET NO. 04-08 057 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to March 6, 2003 for additional compensation based on dependents. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The veteran had active service from May 1989 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of decisions of the RO. The veteran appeared at a hearing before the undersigned Veterans Law Judge at the RO in September 2005. FINDINGS OF FACT 1. The veteran's original claim for compensation was received in June 1994; it contained information regarding her two dependent children, including birth certificates. 2. The November 1994 initial grant of compensation was for a 20 percent combined evaluation. 3. A July 1995 rating decision increased the veteran's combined evaluation to 30 percent; a July 1995 award letter requested that the veteran complete and submit a VA Form 21- 686c. 4. The first VA Form 21-686c contained in the claims folder was not received until March 6, 2003. CONCLUSION OF LAW An effective date prior to March 6, 2003 for payment of additional compensation benefits based on having dependents is not assignable. 38 U.S.C.A. §§ 1115, 5110, 5111 (West 2002); 38 C.F.R. §§ 3.31, 3.204, 3.400, 3.401 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that she is entitled to increased compensation on account of her two dependent children. She notes that the children were her dependents at the time she first submitted a VA claim in June 1994, and that she included birth certificates and other information regarding her children in her original claim. Furthermore, the veteran argues that she submitted a timely VA Form 686c for status of dependents after the RO provided such a form with the July 1995 award letter and requested that it be returned. She believes that her original VA Form 686c was either not delivered or was lost by VA. In the alternative, she argues that the information regarding her children that she submitted with her original claim provided a sufficient basis for the RO to make an award of increased compensation without any additional forms or information. The Board has considered the matter of an earlier effective date for the grant of additional compensation for dependents with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. In this case, the RO provided VCAA notice within a November 2003 letter and a January 2004 statement of the case. The notice included the type of evidence needed to substantiate the claim for an earlier effective date. The veteran was also provided with information regarding the submission of evidence and whether she or VA was responsible or submitting such evidence. After the receipt of this notification, the veteran's claim was readjudicated at the time of an August 2004 supplemental statement of the case. As the VCAA notices came after the initial adjudication of the claim, the timing of the notices did not comply with the requirement that the notice must precede the adjudication. However, the action of the RO described hereinabove, cured the defect because the veteran had a meaningful opportunity to participate effectively in the processing of her claim as she had the opportunity to submit additional argument and evidence, which she did, and to address the claim at a hearing. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). For this reason, the veteran has not been prejudiced by the timing of the notices and no further development is needed to ensure VCAA compliance. As for content of the VCAA notices, the documents together comply with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and, of Pelegrini, supra (38 C.F.R. § 3.159 notice). Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that the duty-to-assist provisions of the VCAA have been met. The record indicates that the veteran submitted her original claim for compensation in June 1994. The names, birth dates, and birth certificates for her two children were included. Service connected benefits were granted in a November 1994 rating decision. A combined rating of 20 percent was awarded, effective from the date of her May 1994 discharge. As a combined rating of 30 percent is required before additional compensation for dependents can be awarded, no further action was taken in this regard. The veteran does not contend that she was entitled to additional compensation for dependents while her disabilities were evaluated at the 20 percent level. After the receipt of VA outpatient treatment records, the RO reviewed the evaluations for the veteran's disabilities in a July 1995 rating decision. Service connection for an additional disability was granted. As a result, a combined 30 percent combined evaluation was assigned, effective in August 1994. The 30 percent evaluation made the veteran basically eligible for additional compensation for dependents. See 38 U.S.C.A. § 1115. The claims folder contains an award letter from the RO to the veteran dated July 28, 1995. This letter informed her of the favorable July 1995 rating decision. The letter requested that she complete an enclosed VA Form 21-686c for status of dependents. The next communication from the veteran was a statement in support of claim received in November 2002. She submitted several new claims at this time. In addition, she stated that she had enclosed a copy of the birth certificates for her three children and asked that this be accepted for additional dependency compensation. A January 2003 Report of Contact shows that the RO attempt to call the veteran to clarify who had custody of her children and to obtain their social security numbers. The telephone number had been discontinued. In a February 2003 letter, the RO requested that the veteran complete and submit the enclosed VA Form 21-686c. The RO stated that the veteran should reply as soon as possible so that further action could be taken on her claim for her dependents. On March 6, 2003, a completed VA Form 21-686c, Declaration of Status of Dependents, was received from the veteran. The veteran was noted to have three children at that time. Birth Certificates were also apparently submitted. The children's social security numbers were included. A June 2003 award letter indicates that additional benefits had been included for the veteran's children, effective on February 1, 2003. The veteran submitted a Notice of Disagreement in July 2003. She disagreed with the effective date for compensation payments for her two oldest children. Additional information was received from the veteran in November 2003. She noted that her mother had recently discovered some letters from the VA in her attic. She stated that this included a copy of a VA Form 21-686c she had submitted after her July 1995 award. A review of this form shows that it contains information pertaining to her two oldest children, and that it was signed August 6, 1995. An examination of the claims folder shows that it does not contain a copy of the August 6, 1995 VA Form 21-686c received prior to 2003. The January 2004 Statement of the Case found that an error had been made in making the additional compensation for the two oldest children effective from January 6, 2003. It was noted that the proper effective date was March 6, 2003, which was the date of receipt of the VA Form 21-686c. The June 2003 award letter which established an effective date of January 6, 2003, was found to contain clear and unmistakable error. The award for the veteran's third child was made effective from the date of that child's birth. The veteran testified at a hearing before the RO in May 2004. She noted that she had submitted her children's birth certificates with her original claim. She further testified that she had submitted a VA Form 686c not long after the award of the 30 percent evaluation. Although VA never stated that the two children were included in the award, she said that she assumed the award included compensation on their behalf. See Transcript. In a September 2004 statement, the veteran noted that she had included birth certificates and other information about her children with her original claim. Furthermore, she stated that she had returned the VA Form 21- 686c as requested shortly after receipt of the July 1995 award letter. The veteran said she did not become aware that dependent compensation was not included until she compared the size of her award to that of a similarly situated friend. See Transcript. The veteran testified before the undersigned Veterans Law Judge in September 2005 that she had completed the form that came with her July 1995 award letter and returned it to the RO. Consequently, she assumed that her compensation included additional funds for her dependents. It was not until 2001 that she began to suspect that her compensation did not include payment for dependents. See Transcript. The law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled. 38 U.S.C.A. §§ 1114(c), 1115, 1134, 1135. The effective date of an award of additional compensation or pension payable to or for a veteran on account of a dependent shall be the latest of the following dates: (1) date of claim, (2) date dependency arises, or (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action. With regard to the date of claim, it means the following, listed in their order of applicability: (i) date of veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within one year of the event, otherwise (ii) date notice is received of the dependent's existence, if evidence is received within one year of the VA request. 38 C.F.R. § 3.401(b). The regulations also provide that VA will accept the written statement of a claimant as proof of marriage and birth of children for purposes of determining entitlement, provided the statement contains the date (month and year) and place of the event, the full name and relationship of the other person to the claimant, and social security numbers of dependents. 38 C.F.R. § 3.204(a) (1). Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b). Regardless of VA regulations concerning effective dates of awards, and except as provided in 38 C.F.R. § 3.31(c) [exclusions not factually applicable here], payment of monetary benefits based on original, reopened, or increased awards of compensation, pension or dependency and indemnity compensation may not be made for any period earlier than the first day of the calendar month following the month in which the award became effective. See 38 U.S.C.A. § 5111 (West 2002); 38 C.F.R. § 3.31. Initially, the Board notes that the veteran's claim involves additional compensation for her two eldest children. She has been in receipt of additional compensation for her youngest child effective from the date of his birth and makes no contentions regarding additional compensation on behalf of this child. In essence, the veteran contends that she is entitled to an earlier effective date for compensation for her dependents for two reasons. First, she argues that she mailed a VA Form 21-686c in 1995, and implies that either this form was lost in the mail, or misplaced at the RO. Second, she believes that information already in the claims folder at the time of the increase of her award to 30 percent was sufficient to allow payment. However, the Board finds that these arguments do not provide a basis for assigning an effective date prior to March 6, 2003 for additional compensation for these dependents. The veteran suggests that VA should accept the copy of the VA Form 21-686c dated August 1995 as proof that on that date he notified VA of her dependents. She implies that VA destroyed or mishandled this letter and it was not placed in her claims file. The veteran has presented no evidence (such as a postal receipt) that the August 1995 letter was actually mailed to VA. She has presented no evidence that VA received this letter prior to 2003 or that it was mishandled or misplaced by VA. In the end, she has merely made allegations of error. According the presumption of administrative regularity, government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefragable to overcome that presumption. See Clemmons v. West, 206 F.3d 1401 (Fed. Cir. 2000). As there is no evidence to substantiate the veteran's claims but her own allegations, she has not presented the evidence required to over come the presumption in the current case. The Board further finds that the Statement in Support of Claim received in November 2002 does not provide a basis for an earlier effective date. Although this statement indicates that birth certificates were enclosed, the claims folder does not contain any birth certificates date stamped November 2002. Birth certificates were apparently received with the March 2003 VA Form 21-686c. Moreover, the November 2002 statement did not include the dependent's Social Security numbers. Therefore, this statement did not contain sufficient information on which to base an award. See 38 C.F.R. § 3.204(a) (1). The Board acknowledges the veteran's contentions that she had reported the information regarding her dependent children at the time she filed her original claim in June 1994, and thus, the information was already of the record. The Board finds that the RO's request for the form was reasonable in the circumstances of this case. The veteran's prior 20 percent evaluation had been in effect for nearly a year. Her 30 percent evaluation was first awarded in a July 1995 rating decision. By this time, the status of the veteran's dependents could have been quite different from what was reflected in the original application. The request for a new Declaration of Dependents contained in the July 1995 RO letter was required in light of the increase in compensation then awarded. The veteran's failure to respond to the RO's request meant that the RO was not informed of the actual status of her dependents between July 1995 and March 2003, more than eight years later, when documentation of the current status of her dependents was received by the RO. It is immaterial that the dependent status of her children had not changed; it is only sufficient that the RO needed to establish the current dependent status of those children. The law is clear that to establish entitlement to additional benefits for a dependent, the mere fact that a veteran has submitted evidence showing that he or she had children is not sufficient to award such benefits. The RO was not obligated to begin paying additional benefits for dependent children based solely on the information provided on the original claim. The veteran was required to follow through with specific information after VA compensation benefits were awarded to her, as required by law. She failed to so. As more than a year had elapsed since both the increase in the disability rating to 30 percent and the request for a VA Form 21-686c had occurred, the RO was entitled to make the increase in compensation for dependents effective from the first day of the month following the month in which the claim for additional compensation for dependents was received. Having carefully considered all evidence of record with regard to the veteran's argument in light of the applicable law, the Board finds that the veteran's contention is without merit. Under 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.401, additional compensation would have been payable to the veteran if evidence of dependency had been received within one year of the July 1995 notification of the rating action announcing the award of increased compensation. The claims folder indicates that a Declaration of Status of Dependents form was not received until March 2003, which was well after the expiration of one year since she had been informed of the necessity for providing such information. The veteran does not dispute this. In conclusion, the law provides that when dependency evidence is not received within the one-year time period, the effective date shall be the date of receipt of the claim. See 38 C.F.R. §§ 3.400, 3.401(b). In this case, the veteran's claim requesting entitlement to additional benefits based on dependent children, with proper evidence of such dependency, was not received any earlier than March 6, 2003. Accordingly, for the reasons and bases discussed hereinabove, the veteran's appeal must be denied on the basis of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). To some extent, it appears that the veteran is raising what amounts to a theory of relief couched in equity. However, the Board is bound by the law in such matters and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Although the RO had been informed of the dependent's existence some years earlier, the RO was entitled, under the applicable law, to determine whether the status of the dependents was the same when the increase occurred. Thus, the Board is of the opinion that the RO assigned the earliest effective date possible for additional compensation benefits for the veteran's dependents. The effective date that the RO assigned was based on the date of receipt of the application for that benefit, with proof of dependency, in March 2003. The payment of increased compensation for the veteran's dependents actually commenced on April 1, 2003, pursuant to the provisions of 38 U.S.C.A. § 5111(a) and 38 C.F.R. § 3.31 outlined above. The Board concludes that an earlier effective date for increased compensation based on the veteran's dependent children is not warranted. Accordingly, the appeal is denied. ORDER An effective date earlier than March 6, 2003, for the award of additional VA compensation for the veteran's dependents is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs