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