Citation Nr: 0114911 Decision Date: 05/30/01 Archive Date: 06/04/01 DOCKET NO. 98-00 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to retroactive increased apportionment, effective from May 23, 1990, of the veteran's Department of Veterans Affairs disability compensation. ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The veteran served on active military duty from March 1969 to December 1970. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a rating decision from the Department of Veterans Affairs (hereinafter VA) Regional Office in Portland, Oregon (hereinafter RO). FINDINGS OF FACT 1. Apportionment of the veteran's disability compensation for the benefit of his two minor children in the appellant's custody was granted effective July 1986. 2. The appellant's claim for retroactive increased apportionment was received by the RO in April 1997. CONCLUSION OF LAW The claim of entitlement to retroactive increased apportionment, effective from May 23, 1990, of the veteran's VA disability compensation is legally insufficient. 38 U.S.C.A. § 5307(a) (West 1991); 38 C.F.R. §§ 3.400, 3.450, 3.451 (2000); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has been informed of the evidence necessary to substantiate her claim and provided an opportunity to submit such evidence. Moreover, VA has conducted reasonable efforts to assist her in obtaining evidence necessary to substantiate her claim. Accordingly, the Board finds that the duty to assist has been fulfilled. See generally, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The record reflects that the veteran and the appellant were married in December 1973. Birth certificates show the veteran as the father and the appellant as the mother, of two children born in January 1975, and August 1978. The veteran and the appellant were divorced in November 1986. By a rating action dated in December 1985, service connection for post-traumatic stress disorder was granted, and a 50 percent disability evaluation was assigned, effective August 1985. The appellant originally sought an apportionment of the veteran's VA disability compensation in June 1986. In July 1987, the appellant's claim for apportionment of the veteran's disability compensation for the benefit of their two minor children in her custody was granted, effective July 1986. In a statement dated in November 1989, the veteran requested that apportionment of his VA benefits be terminated due to a change of his financial status and due to the improper use of the funds. In March 1990, the RO denied the veteran's claim to terminate the apportionment of his benefits to his children. In August 1994, the RO informed the appellant that the oldest child had been added back on to the apportionment award as a "school child." By a rating decision dated in January 1997, a 100 percent disability rating for the veteran's post-traumatic stress disorder was assigned, effective from May 23, 1990. In a statement received in April 1997, the appellant requested apportionment of the retroactive disability benefits that the veteran received as a result of the rating decision dated in January 1997. In a letter dated in October 1997, the RO informed the appellant that no action could be taken on her claim, as apportionment of the veteran's benefits could not be granted retroactively. The appellant's notice of disagreement to this action was received in November 1997, and a statement of the case was issued that same month. The appellant's substantive appeal was received in December 1997. The appellant contends that the veteran is in considerable arrears with respect to child support and requests that the apportionment be granted effective with the month of the veteran's entitlement to additional benefits. She further contends that the VA failed to inform her of the veteran's disability change in status. Applicable law provides that a veteran's compensation may be specially apportioned if hardship is shown to exist on the part of the veteran's dependents as long as such apportionment would not cause undue hardship to the veteran. 38 U.S.C.A. § 5307; 38 C.F.R. § 3.451. The effective date of an original claim for apportionment will be in accordance with the facts found. 38 C.F.R. § 3.400(e)(1). On other than original claims for apportionment, such as in the instant case, the effective date of the award will be from the first day of the month following the month in which the claim is received. Id. As noted above, in January 1997, the veteran was awarded a 100% rating for his service-connected post-traumatic stress disorder, with an effective date of May 23, 1990. The appellant did not apply for retroactive increased apportionment benefits until April 1997, after the veteran had been awarded a 100% disability rating. There is no indication in the record that prior to that date, the appellant filed a claim for an increase in apportionment of the veteran's disability benefits on behalf of their children. The fact that the veteran was retroactively paid additional VA disability benefits for the period of 1990 to 1997, does not alter the outcome of the case. The additional VA disability benefits are payable to a veteran personally and the dependent has no independent right to the additional VA disability benefits (although the dependent may seek a prospective apportionment of the additional VA disability benefits). Here, there simply was no claim for an increase in the monthly apportionment until April 1997. Congress has established specific rules governing effective dates in 38 U.S.C.A. § 5110 (West 1991), and VA is not free to disregard those rules without statutory authority. Section 5110(a) expressly provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." Accordingly, VA is not free to award a retroactive effective date prior to the date it receives a claim unless there is specific statutory authority for such retroactive effective date. Nothing in chapter 53 of title 38, United States Code, provides authority for awarding an effective date earlier than the date on which VA receives the claim. A Federal agency's power is no greater than that delegated to it by Congress. Lyng v. Payne, 476 U.S. 926, 937 (1986). Accordingly, VA's authority to award benefits is limited to the awards expressly authorized by statute and VA may not award benefits in a manner not provided by statute. The Board has also considered the appellant's argument that the VA had a duty to notify her of the veteran's receipt of additional VA disability compensation benefits. This argument is without merit. Although the veteran's increased disability compensation was paid retroactively to May 23, 1990, the additional disability benefits for the veteran's service-connected post-traumatic stress disorder were not granted until a rating decision dated in January 1997. Accordingly, the RO could not have informed her of any increase prior to January 1997. The appellant had previously been informed in correspondence from the RO in July 1987, that "[a] claim for an apportionment can be reopened for adjustment at any time." Moreover, the RO informed the appellant in May 1997 that due to this increase, the veteran's children were eligible for Chapter 35 benefits. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The claim of entitlement to retroactive increased apportionment, effective from May 23, 1990, of the veteran's VA disability compensation is denied. D. C. Spickler Member, Board of Veterans' Appeals