Citation Nr: 0814196 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 05-27 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than October [redacted], 2003, for the award of dependency and indemnity compensation (DIC) for an additional dependent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and K.Y. ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The veteran had active duty service from June 1943 to July 1946 with subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 administrative decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant was afforded a February 2008 Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the record. FINDINGS OF FACT 1. The appellant filed an August 12, 1998 claim for her adopted child to have status as a dependent of the veteran. 2. The appellant did not submit a notice of disagreement to the October 5, 1998 decision denying her adopted child status as a dependent of the veteran. 3. The appellant submitted a September 26, 2003 claim to reopen the October 5, 1998 decision denying her adopted child status as a dependent of the veteran. CONCLUSION OF LAW The criteria for assignment of an effective date earlier than October [redacted], 2003 for the award of dependent status have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the claim, the Board is required to address the duty to notify and duty to assist imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 3.159. However, the provisions of the Veterans Claims Assistance Act have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In this instance, the law is dispositive of the matter, and no further discussion of the duty to notify and assist is necessary. Analysis The appellant contends that the effective date of VA's recognition of her adopted daughter as a dependent of the veteran should be August [redacted], 1998 instead of October [redacted], 2003. The Board through the undersigned has carefully examined the evidence of record in light of the appellant's contentions and the applicable law, but regretfully finds that there is no basis upon which the Board may presently grant the benefit the appellant seeks. The law clearly limits the effective date of the increased compensation to the receipt of the claim, and the appeal must be denied. 38 C.F.R. § 3.400. Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). There is no question that in August 1998, the appellant filed a claim for dependent status of her adopted daughter. By way of an October 1998 administrative decision, the appellant's claim was denied. The appellant did not file a timely notice of disagreement (NOD) to commence an appeal from this decision, and as such, it became final. 38 C.F.R. § 20.302. In late September 2003, the appellant filed a claim to reopen her original claim to add her adopted daughter as a dependent. In due course of appellate proceedings, by way of a May 2005 Administrative Decision, the RO granted the appellant's claim to add her adopted daughter as a dependent of the veteran. The appellant presently challenges the assigned effective date of the increased compensation, and argues that it should be August [redacted], 1998, which is the date the adoption became final, as opposed to the date of her claim. Although she does not contend that she filed a notice of disagreement as to the October 1998 administrative decision, the appellant reports that she was distracted from doing so, due indeed to the difficulties which gave rise to the adoption of the child in the first instance. A thorough reading of the record leaves no doubt that during the period of October 1998, the appellant and her immediate family were undertaking what can only be called compassionate and Herculean efforts to care for the adopted child, as well as addressing a myriad of other difficulties which will not be reiterated here. Further, at the February 2008 hearing conducted at the Waco RO, the appellant candidly testified both as those family issues, as well as her belief in the merits of the assignment of an earlier effective date. However, the law is dispositive in this instance, and there is no legal basis for the assignment of an earlier effective date. Under 38 C.F.R. § 3.400, the earliest date for an award is the receipt of the application for benefits. Although the appellant initially filed an August 1998 claim, she did not appeal the unfavorable decision. Finality thereby attached to the October 1998 decision, and the Board is unable to reach it for alteration because no appeal was filed. 38 U.S.C.A. § 7105(a); see Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995)((Pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA)). She filed her current claim in September 2003, and the RO granted the claim in May 2005, assigning an effective date at the beginning of the month after the date she filed her claim. Because the appellant did not challenge the initial denial of her claim, and because in this instance the law limits the effective date to the date of the claim favorably acted upon, the appellant's appeal for an effective date earlier than her claim must be denied. See 38 C.F.R. § 3.400. The appellant's essential contention is grounded in the equity of the circumstances presented. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. ORDER The appeal is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs