Citation Nr: 0809952 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-13 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than August 20, 2004, for an award of Dependency and Indemnity Compensation (DIC) for the deceased veteran's minor child. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Finn, Associate Counsel INTRODUCTION The veteran served on active duty from October 1992 to June 1995. The veteran died in June 1995. The appellant is advancing this appeal on behalf of her son, who is the minor child of the deceased veteran. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that established service connection for the cause of the veteran's death and awarded DIC for the veteran's minor child, effective from August 20, 2004. The appellant perfected an appeal contesting the effective date assigned for the award of DIC. In January 2008, the appellant was afforded a video conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In July 2007, the appellant requested that the jurisdiction of her claim be transferred to Columbia, South Carolina, RO. FINDINGS OF FACT 1. The veteran served on active duty from October 21, 1992 to June [redacted], 1995. 2. The veteran died on June [redacted], 1995. 3. On August 20, 2004, the RO received the appellant's application for DIC, on behalf of her son, E.L.J., Jr., together with the Certificate of Live Birth certifying that E.L.J., Jr., was born on October [redacted], 1995, and that he is the natural son of the deceased veteran. 4. By a November 2004 rating decision, the RO determined that service connection for the cause of the veteran's death was established and awarded DIC for the deceased veteran's minor child, E.L.J., Jr., effective from August 20, 2004. CONCLUSION OF LAW The criteria for an effective date earlier than August 20, 2004, for an award of DIC for the deceased veteran's minor child are not met. 38 U.S.C.A. §§ 5110(a), (d), (e)(1), (n) (West 2002); 38 C.F.R. §§ 3.1(p), 3.5(a)(1), 3.155, 3.400 (c)(4)(ii), 38 C.F.R. § 3.403(a)(3) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103(a) (West 2002), VA must notify the claimant of any information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b) (2007), VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. The VCAA notice should be provided to a claimant before the Agency of Original Jurisdiction (AOJ) renders the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If such notice is sent after the initial decision, then it should be sent before a readjudication of the claim. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). Here, the record reflects that the appellant was not provided a VCAA notice at anytime prior to the initial adjudication in November 2004 that established service connection for the cause of the veteran's death, granted an award of DIC for the veteran's minor child, and assigned an effective date of August 20, 2004. While the notice letter provided to the appellant in March 2007 was not sent until after the first adjudication of the claim, this letter was provided prior to readjudicating the effective date issue in the May 2007 Supplemental Statement of the Case, and the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant was specifically notified that the information and evidence needed to substantiate her effective date claim was evidence demonstrating that she had filed a claim for DIC prior to August 20, 2004. She was notified of what evidence VA would obtain for her, of what evidence she was responsible for submitting, and was notified to submit any pertinent evidence in her possession. Thus, the Board concludes the defect in the timing of the VCAA notice was remedied and is deemed harmless error. As to VA's duty to assist the appellant with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained the pertinent documents, and there is no indication from the claims file of additional records for which VA has not obtained, or made sufficient efforts to obtain. In summary, all relevant facts have been properly developed with regard to the appellant's claim, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the Board finds that no prejudice to the appellant will result from an adjudication of this appeal in this Board decision. Rather, remanding this case for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also 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 veteran are to be avoided). II. Claim for Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim for dependency and indemnity compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for dependency and indemnity compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400; see also 38 C.F.R. § 3.5(a)(1) (2007) (defining "dependency and indemnity compensation" as a monthly payment made by VA to a surviving spouse, child or parent because of a service-connected death occurring after December 31, 1956). The effective date of an award of dependency and indemnity compensation for which an application is received within one year from the date of death shall be the first day of the month in which the death occurred. 38 U.S.C.A. § 5110(d). The effective date of an award of dependency and indemnity compensation for a child (under the age of eighteen) shall be the first day of the month in which the child's entitlement arose if the application thereof is received within one year from such date. 38 U.S.C.A. § 5110(e)(1) (emphasis added). This statutory provision is implemented by regulation which provides that the effective date of an award of dependency and indemnity compensation for a child will be the first day of the month in which entitlement arose if the claim is received within one year after the date of entitlement; otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(c)(4)(ii). The effective date 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 the marriage, birth, or adoption. 38 U.S.C.A. § 5110(n). Pertinent regulation, which pertains to a posthumous child, further provides that the effective date for an award of dependency and indemnity compensation will be the date of the child's birth if proof of birth is received within one year of that date, or if notice of the expected or actual birth meeting the requirements of an informal claim, is received within one year after the veteran's death; otherwise, the date of claim. 38 C.F.R. § 3.403(a)(3). A claim-application means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2007). The information of record shows that on August 20, 2004, the RO received the appellant's claim for DIC on behalf of her son, E.L.J., Jr., who is the natural child of the deceased veteran. By a November 2004 rating decision, service connection for the cause of the veteran's death was established, and DIC for the veteran's minor child, E.L.J., Jr., was awarded, effective from August 20, 2004 (the date of receipt the claim). In her December 2004 notice of disagreement, the appellant contends that the effective date for her son's award of DIC should be prior to August 20, 2004. She maintains that if she had known that her son was entitled to benefits she would have filed a claim in October 1995 (the date her son was born). Specifically, the she contends that she received incorrect information from the veteran's service department by way of a JAG (Judge Advocate General) officer, who investigated the veteran's death, as indicated from the January 2008 hearing transcript. Also, she maintains that the veteran's next of kin (his parents) received VA notice in February 1996, but did not inform her. The appellant does not dispute that she never notified VA of the birth of the (deceased) veteran's child until August 2004-almost nine years after date of the veteran's death and the birth of her child. Unfortunately, the JAG office is not affiliated with VA and its actions can not be imputed on VA. The Board is bound to apply the law applicable at the time of filing of the claim. Bryan v. West, 13 Vet. App. 482, 486-87 (2000). The Supreme Court of the United States has held that everyone dealing with the Government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Thus, regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance." Id. at 385, 68 S.Ct. 1. The relevant facts are not in dispute. The formal claim was filed on August 20, 2004. And, there is nothing in the record that can be construed as an informal claim prior to that date. When a claim, as this case, is received more than one year after the date of the child's birth or the date of the veteran's death, the effective date for an award of DIC for a minor child is the later of the date of receipt of the claim or the date entitlement arose. The law is clear that VA cannot grant an effective date earlier than date of receipt of the claim. Accordingly, in this case, the law dictates that the proper effective date for an award of DIC for the deceased veteran's child, E.L.J., Jr., is August 20, 2004. The appeal is denied. In denying this appeal, the Board acknowledges the unfortunate circumstance of the appellant's case. The Board notes that the appellant's arguments essentially constitute a theory of equitable relief. Although the Board denies her appeal as a matter of law as lacking legal merit, the Board is sympathetic to her claim. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Secretary of VA, however, has discretionary equitable power to provide relief, and the appellant is free to apply to the Secretary of VA and request that he exercise his discretionary authority to grant her claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2002); 38 C.F.R. § 2.7 (2007). ORDER Entitlement to an effective date earlier than August 20, 2004, for an award of DIC for the deceased veteran's minor child is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs