Citation Nr: 0627277 Decision Date: 08/29/06 Archive Date: 09/06/06 DOCKET NO. 04-29 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an earlier effective date prior to March 1, 2004, for an additional allowance for a dependent child, F.D. ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from January 1973 to March 1974. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 decision by the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. In August 2001, a VA Form 21-526, was received from the veteran in which he applied for VA disability compensation benefits; he indicated on that form that he had no dependent children. 2. The veteran was originally granted entitlement to VA disability compensation, rated as 30 percent disabling, effective from August 22, 2001. 3. In November 2002, the veteran was notified of his award of VA disability compensation benefits; he was informed that veterans with a combined disability rating of 30 percent or more were entitled to receive additional benefits for their children and that should he had dependents to declare, he should complete a VA Form 686c and return it to VA for processing, and that VA only would pay retroactive benefits providing that the form was received within one year of this November 2002 notification letter. 4. On February 25, 2004, a VA Form 686c, was received from the veteran in which he listed that he had a dependent son, F.D., who was born in August 1993; he submitted supporting documentation of his son's birth and his paternity. 5. In March 2004, the veteran was notified that he had been awarded an additional allowance for his dependent, F.D., effective March 1, 2004; he was also informed of his obligation to promptly notify the VA of any changes in the dependency status. CONCLUSION OF LAW An effective date for the payment of additional disability compensation for a dependent son, F.D., is not warranted prior to March 1, 2004. 38 U.S.C.A. §§ 1115, 5110, 5111 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.204, 3.400, 3.401 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). There are some claims to which VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). It has been held not to apply to claims based on allegations that VA decisions were clearly and unmistakably erroneous. Id. It has been held not to apply to claims that turned on statutory interpretation. Smith v. Gober, 14 Vet. App. 227, 231-2 (2000). In another class of cases, remand of claims pursuant to VCAA is not required because evidentiary development has been completed. Wensch v. Principi, 15 Vet. App. 362, 368 (2001); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Although the United States Court of Appeals for Veterans Claims (Court) said in Wensch that VCAA did not apply in such cases, it may be more accurate to say that VCAA applied, but that its notice and duty to assist requirements had been satisfied. When it is clear that there is no additional evidentiary development to be accomplished, there is no point in remanding the case. See Soyini. During the drafting of the VCAA, Congress observed that it is important to balance the duty to assist against the futility of requiring VA to develop claims where there is no reasonable possibility that the assistance would substantiate the claim. For example, wartime service is a statutory requirement for VA pension benefits. Therefore, if a veteran with only peacetime service sought pension, no level of assistance would help the veteran prove the claim; and if VA were to spend time developing such a claim, some other veteran's claim where assistance would be helpful would be delayed. 146 CONG. REC. S9212 (daily ed. Sept. 25, 2000) (statement of Senator Rockefeller). The Board first notes that this issue turns on statutory interpretation. See Smith. Thus, because the law as mandated by statute, and not the evidence, is dispositive of this appeal, the VCAA is not applicable. Mason v. Principi, 16 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429- 30 (1994) (where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought.). There is no dispute in this case over when the veteran's VA Form 686c was received, in which he declared his dependent son F.D., as a dependent for VA purposes. Rather, the veteran expresses that he does not understand why VA only provides one year for him to provide this information. The Board will provide an explanation as set forth below. There is no point remanding this matter for further VCAA guidance as there is no dispute over the evidence whatsoever. The only dispute is over whether VA's time limit is appropriate. In the circumstances of this case, a remand would serve no useful purpose for the issues being decided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has satisfied its duties to notify and to assist the claimant in this case. As such, no further action is required pursuant to the VCAA. In August 2001, a VA Form 21-526, was received from the veteran in which he applied for VA disability compensation benefits. The veteran indicated on that form that he was divorced and that he had no dependent children. In a November 2002 rating decision, service connection was granted for gastroesophageal reflux disease with esophagitis. This disability was rated as 30 percent disabling, effective August 22, 2001. Thus, the veteran was originally granted entitlement to VA disability compensation, rated as 30 percent disabling, effective from August 22, 2001. In November 2002, the veteran was notified of his award of VA disability compensation benefits. In the November 2002 notification letter, he was informed that veterans with a combined disability rating of 30 percent or more were entitled to receive additional benefits for their children and that should he had dependents to declare, he should complete a VA Form 686c and return it to VA for processing. He was further informed that VA only would pay retroactive benefits providing that the VA Form 686c was received within one year of this November 2002 notification letter. On February 25, 2004, a VA Form 686c, was received from the veteran in which he listed that he had a dependent son, F.D., who was born in August 1993. The veteran submitted a copy of his son's birth certificate as well as other supporting documentation of his son's birth and his paternity. In March 2004, the veteran was notified that he had been awarded an additional allowance for his dependent, F.D., effective March 1, 2004; he was also informed of his obligation to promptly notify the VA of any changes in the dependency status. The veteran disagrees with the assigned effective date of March 1, 2004. He states that he does not understand the one year limitation on submitting the proper paperwork. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later date. 38 C.F.R. § 3.400. As to compensation for dependents, additional compensation is payable to veterans with a combined disability evaluation of 30 percent or more for their dependents. 38 U.S.C.A. § 1115. An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for that purpose shall be payable from the effective date of such rating, but only if such proof of dependents is received within one year from the date of such rating action. 38 U.S.C.A. § 5110(f); McColley v. West, 13 Vet. App. 553, 555-56 (2000) (award of dependency benefits not contingent on the "mailing" of the required evidence, but rather its "receipt" by VA); See also Montalvo v. Brown, 7 Vet. App. 312, 314 (1995) (to "furnish" constitutes something "more than mere mailing," and requires actual receipt). The statute further provides that the effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of marriage, birth, or adoption. 38 U.S.C.A. § 5110(n). The enabling regulation provides with respect to the effective date for additional compensation or pension for dependents that the effective date will be the latest of the following dates: (1) Date of claim: This term means the following, listed in their order of applicability: (a) Date of birth of the child or of adoption, if the evidence of the marriage is received within one year of the event; otherwise, (b) date notice is received of the dependent's existence, if evidence is received within one year of VA request. (2) Date the dependency arises. (3) Effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of the veteran's award. 38 U.S.C.A. § 5110 (f), (n); 38 C.F.R. § 3.401(b). The regulation further defines the date of claim for additional compensation for dependents as the 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, the date notice is received of the dependent's existence, if evidence is received within one year of notification of such rating action. 38 C.F.R. § 3.401(b)(1). The regulations also provide that VA will accept the written statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent for purposes of determining entitlement, provided the statement contains the date (month and year) and place of the marriage and the full name and relationship of the other person to the claimant. 38 C.F.R. § 3.204(a)(1). 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. 38 U.S.C.A. § 5111; 38 C.F.R. § 3.31. In this case, the veteran was notified of his award of VA disability compensation benefits in November 2002. No notice was received from the veteran regarding any dependents within one year of November 2002. The veteran first notified VA of the existence of his dependent son, F.D., in February 2004. Thus, the date of claim was February 2004. This date, February 2004, is the latest of the applicable dates for adding a dependent child to the veteran's award. The pertinent law and regulations provide that the veteran's dependent son, F.D., may not be added prior to the date of claim in this case because the veteran failed to notify VA within one year of the November 2002 determination and notification. See 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 3.401. The actual date of commencement of the award is the first day of the calendar month following the month in which the award became effective; hence the effective date of March 1, 2004. See 38 U.S.C.A. § 5111. The veteran indicates that he does not understand this one year limit. The Board is bound by VA law and regulations. They set forth the time limits for such claims and benefits. The veteran had a full year to provide the information requested. The documents submitted by the veteran show that the Family Court of the State of New York declared the veteran to be the father of F.D. in August 2003. If the veteran had submitted the required information to VA at that time, his benefits would have been retroactive to November 2002. However, he failed to do so. It was the veteran's responsibility to furnish this information. He delayed doing so until February 2004. As such, his effective date is later, per the applicable VA law and regulations. Accordingly, an effective date for the payment of additional disability compensation for a dependent son, F.D., is not warranted prior to March 1, 2004. ORDER An effective date earlier than March 1, 2004, for the payment of additional disability compensation for a dependent son, F.D., is denied. ____________________________________________ J. A. MARKEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs