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