Citation Nr: 1020856 Decision Date: 06/07/10 Archive Date: 06/21/10 DOCKET NO. 08-16 590 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to additional benefits for a dependent, M.S.W., the Veteran's daughter. 2. Entitlement to an effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to November 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of March and April 2006, and a letter decision of November 2007 by the RO in Philadelphia, Pennsylvania. A personal hearing was held before the undersigned Veterans Law Judge in April 2010. Additional evidence was received from the Veteran in April 2010. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304. The issue of entitlement to earlier effective date for the grant of service connection for polycythemia vera is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On July 6, 2001, the RO received the Veteran's VA Form 21-526 (Veteran's Application for Compensation and/or Pension), in which he claimed service connection for polycythemia vera, and reported that he had no dependent children. 2. In a March 2006 decision, the RO granted service connection for polycythemia vera, effective July 6, 2001. The RO assigned a 40 percent rating effective July 6, 2001, and a 10 percent rating effective October 1, 2001. The appellant was notified in March 2006 that he might be entitled to additional benefits for dependents and he was provided a VA Form 21-686c, Declaration of Status of Dependents. 3. In an April 2006 decision, the RO granted a 40 percent rating for polycythemia vera, effective July 6, 2001. By a letter to the Veteran dated on April 28, 2006, the RO notified him that he might be entitled to additional benefits for dependents and he was provided a VA Form 21-686c, Declaration of Status of Dependents. 4. The Veteran did not submit a completed VA Form 21-686c until August 2007. In this form he reported that his daughter, M.S.W., was born on May [redacted], 1986. 5. In April 2010, the Veteran submitted a photocopy of a July 2001 Alabama state court order that established him as the father of M.S.W. CONCLUSION OF LAW The criteria for entitlement to payment of additional benefits for a dependent child have not been met. 38 U.S.C.A. §§ 101, 1115, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.4, 3.57, 3.400, 3.401(b) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This case, however, is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has no duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001). In light of the foregoing, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board will thus proceed with the consideration of this case. Analysis The issue on appeal involves the Veteran's appeal for inclusion of his child, M.S.W., as a dependent for VA compensation purposes. Governing regulation provides that veterans having a 30 percent or more service-connected disability may be entitled to additional compensation for a child. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The term "child" for purposes of title 38 of the United States Code is specifically defined. For purposes of determining eligibility as a claimant under title 38, a child must be unmarried and must be either under the age of 18, have become permanently incapable of self-support before the age of 18, or be between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution. 38 U.S.C.A. § 101(4)(A)(ii); 38 C.F.R. §§ 3.57(a)(1), 3.356. 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. 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 record reflects that in a March 2006 decision, the RO granted service connection for polycythemia vera, effective July 6, 2001. The RO assigned a 40 percent rating effective July 6, 2001, and a 10 percent rating effective October 1, 2001. By a letter to the Veteran dated on March 14, 2006, the RO notified him that it would be paying him VA compensation benefits as a "single veteran with no dependents." He was also advised that he might be entitled to additional benefits for dependents, and he was provided a VA Form 21-686c, Declaration of Status of Dependents. In an April 2006 decision, the RO granted a 40 percent rating for polycythemia vera, effective July 6, 2001. As a result, the Veteran's disability has been rated as 40 percent disabling since that date. By a letter to the Veteran dated on April 28, 2006, the RO notified him of its decision, that it would be paying him VA compensation benefits as a "single veteran with no dependents," and that he might be entitled to additional benefits for dependents. The RO enclosed a VA Form 21-686c, Declaration of Status of Dependents. The Veteran completed and signed a VA Form 21-686c, dated August 22, 2007, and submitted it to VA. In this form he reported that his daughter, M.S.W., was born on May [redacted], 1986, and contended that additional benefits were warranted for his dependent daughter as she was under 18 on the effective date of his grant of service connection. He stated that currently she was not attending school. There are two VA date stamps on this form: one dated on August 22, 2007, and one dated on October 18, 2007. By a letter to the Veteran dated in November 2007, the RO advised him that his child, M.S.W., could not be added to his award as a dependent, as his claim was not received within one year of the date of her 18th birthday, and as she was no longer in school. In his November 2007 notice of disagreement, the Veteran asserted that it was impossible for him to have submitted a claim to add his daughter as a dependent within one year of her 18th birthday because his claim for service connection was not granted until 2006. In a March 2008 statement of the case, the RO advised the Veteran that his claim could not be granted because his VA Form 21-686c was received more than one year following the April 2006 letter notifying him of his award of a 40 percent rating for service-connected polycythemia vera. By statements dated in April 2008, the Veteran said he was late filing his VA Form 21-686c because prior to that, he did not know that additional benefits were available for a dependent child who is not disabled. He said he previously thought that such benefits were only available for disabled children. In April 2010, the Veteran submitted a photocopy of a July 2001 Alabama court order that established his paternity as the father of M.S.W. It reflects that M.S.W. was born on May [redacted], 1986. Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is the date of the appellant's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C.A. § 5110 (f), (n); 38 C.F.R. § 3.401(b)(1) (2009). The Board has reviewed all the evidence of record. As noted, when the appellant was initially informed that he needed to submit additional information concerning his dependents, he failed to return the necessary form information to the RO. It was not until August 2007 that the appellant provided a VA Form 21-686c regarding his daughter. The Board notes that the Veteran's child M.S.W. was born in 1986, and in 2006, he was awarded VA disability compensation in excess of 30 percent. However, he did not notify VA of the existence of his child or provide the proper documentation and information regarding his child until more than one year after he was legally established as her father in late July 2001. Applying the governing regulation regarding effective dates, the date of the Veteran's claim for addition of his daughter as a dependent would be the date that he notified VA of his child's existence, because he did not notify VA within one year of the April 2006 rating decision. See 38 C.F.R. § 3.401(b). Unfortunately, at the time he notified VA of the existence of his child (August 2007), the Veteran's child, M.S.W., was already over the age of 18, and was neither between the ages of 18 and 23 and pursuing a course of instruction at an approved educational institution, nor shown to have been permanently incapable of self-support before the age of 18. The Veteran essentially contends that he did not know that he could receive benefits on behalf of his dependent child until 2007. The Veteran's contention that he was unaware of his eligibility is without merit, as ignorance of the law is no excuse. Bryan v. West, 13 Vet. App. 482 (2000). Everyone dealing with the government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Thus, regulations are binding on all who seek to come within their sphere, regardless of actual knowledge of what is in the regulations or of the hardship resulting from innocent ignorance. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). It is also noteworthy that the appellant was put on notice of what was expected from him yet he failed to provide the RO with notice of the existence of his child, M.S.W., until six years after his initial claim for service connection, and until more than one year after he received the April 2006 letter from the RO. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board regrets that a more favorable determination could not be made in this case. Although the Board is sympathetic to the Veteran, the Board must apply the law as it exists, and the Board is bound by the laws codified in Title 38 of the United States Code and Code of Federal Regulations, which govern benefits administered by the Secretary of VA. See Owings v. Brown, 8 Vet. App. 17, 23 (1995). As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis, 6 Vet. App. at 430. ORDER Entitlement to payment of additional benefits for a dependent child is denied. REMAND In a March 2006 rating decision, the RO granted service connection for polycythemia vera. In a February 2007 statement, the Veteran requested an earlier effective date for the grant of service connection for this disability. The RO construed the Veteran's February 2007 statement as a freestanding claim for an earlier effective date, and denied this claim in a May 2007 rating decision. However, the Board construes the Veteran's February 2007 statement as a timely notice of disagreement as to the effective date assigned in the March 2006 RO decision for the grant of service connection for polycythemia vera. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.201. In this regard, the Board notes that VA statutes and regulations do not provide for a "freestanding claim" for an earlier effective date to be raised at any time in the future. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). This claim is being remanded for issuance of a statement of the case and to give the Veteran the opportunity to complete an appeal for an earlier effective date for the grant of service connection for polycythemia vera. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran, addressing the issue of an earlier effective date for service connection for polycythemia vera. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if an appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs