Citation Nr: 1033025 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 07-09 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than August 1, 1996, for an award of additional compensation for dependents. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from November 1961 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In the February 2005 decision, the RO, in pertinent part, granted an earlier effective date for the assignment of an increased disability rating for service-connected paranoid schizophrenia after having found clear and unmistakable error (CUE) in a prior rating decision, and assigned a 70 percent disability evaluation effective from May 4, 1987, the date from which service connection of the disability had initially been established. The Veteran filed a timely Notice of Disagreement (NOD) in July 2005, wherein he asserted that he was also entitled to additional compensation for his dependents retroactive to that date in 1987. A Statement of the Case (SOC) was issued in January 2007, and the Veteran timely perfected his appeal to the Board in February 2007. FINDINGS OF FACT 1. The Veteran filed a claim of service connection for a mental disorder on May 4, 1987. A December 1987 rating decision granted service connection and assigned a 10 percent evaluation, effective from May 4, 1987. The Veteran appealed for an increased evaluation, and a December 1990 rating decision granted an evaluation of 30 percent effective May 1, 1989. 2. A June 2003 SOC assigned an effective date of September 29, 1995, for the assignment of a 70 percent evaluation for paranoid schizophrenia. 3. In February 2005 rating decision, the RO found that the effective date assigned by the June 2003 SOC constituted CUE, and assigned an effective date of May 4, 1987, for the grant of a 70 percent evaluation for paranoid schizophrenia. CONCLUSION OF LAW The criteria for an effective date of May 4, 1987, but no earlier, for an additional dependency allowance for the Veteran's dependents, have been met. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.210, 3.216, 3.401 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). It appears that in this case the record is sufficient to support a grant of an effective date of May 4, 1987, the date of the Veteran's original claim. Thus, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to this claim are rendered moot. II. Pertinent Law, Facts, and Analysis As noted above, the Veteran seeks retroactive benefits for the additional dependents allowance following the grant of an increased disability evaluation of 70 percent for his service- connected psychiatric disability. He seeks those benefits effective from May 4, 1987, the date from which service connection was initially established and from which his 70 percent disability rating is now assigned. The additional payments based on the existence of dependents are provided in 38 U.S.C.A. § 1115. Effective October 1, 1978, Public Law 95-479 amended section 1115 to provide that additional compensation would be payable to veterans with a combined disability evaluation of 30 percent or more, to assist in the support of their dependent spouses and/or children. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C.A. § 5110(f). Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for one or more dependents. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating, provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the Veteran's award. 38 C.F.R. § 3.401(b). The earliest that the additional award of compensation for a dependent can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31. In the present case, careful review of the record reveals that the Veteran first filed a claim to receive additional compensation for his dependent spouse and children on July 11, 1996. At that time, he submitted a completed VA Form 686c, Declaration of Status of Dependents, as well as birth certificates for his three daughters and the marriage certificate for him and his wife. The Veteran had previously been advised in July 1987 and January 1988 letters that he needed to submit certain evidence to receive additional benefits for dependents. He appeared to acknowledge in the VA Form 21-686c filed on July 11, 1996, that he had been aware of his need to submit the dependency evidence but had not done so due to a prior inability to handle his affairs. There is no indication in the evidentiary record that he had filed an earlier claim and submitted dependency information. Therefore, July 11, 1996, is the date of the claim for dependency benefits. In regard to the date dependency arose, the Veteran's three daughters were born in March 1970, July 1971, and March 1979, respectively. See birth certificates for the Veteran's daughters received by VA on July 11, 1996. The marriage certificate shows that the Veteran and his wife were married in April 1971. Thus, dependency arose for the Veteran's three children during the period from March 1970 to March 1979, and for his spouse in April 1971. As to the effective date of the qualifying disability rating (i.e., a disability rating of 30 percent or more), the Board notes that, in a December 1987 rating decision, service connection was established for paranoid schizophrenia with a 10 percent schedular rating from May 4, 1987; a temporary 100 percent disability rating from June 17, 1987; and a 10 percent disability rating from September 1, 1987. The RO also granted service connection for residuals of a right knee injury, with a noncompensable (0 percent) rating from May 4, 1987. In a subsequent August 1990 Hearing Officer Decision, an increased rating of 30 percent was granted for the Veteran's service-connected psychiatric disability. The RO then implemented the HO's Decision and assigned an effective date of May 1, 1989, for the 30 percent disability rating in its December 1990 rating decision. The Veteran was advised by the RO of the above action by way of February 1991 correspondence mailed to him at his then current address of record. 38 U.S.C.A. § 3.1(q); see Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption of regularity to attach). He was also advised in an enclosed VA Form 21-8764 (Disability Compensation Award Attachment - Important Information) that veterans having a service-connected condition rated 30 percent or more may be entitled to additional compensation for dependents. He was further advised to promptly advise VA of any change in the status of his dependents. The Veteran was being paid at the single rate, with no dependents, at that time. Nevertheless, the Veteran did not provide evidence of dependency within a year after the February 1991 letter. Instead, as stated above, he first provided evidence of dependency in July 1996, approximately five years later. A June 2003 SOC assigned an effective date of September 29, 1995, for the assignment of a 70 percent evaluation for paranoid schizophrenia because a request for a VA examination was completed on this date. The Board notes that the examination request was not actually received by VA until October 9, 1995. However, in a February 2005 rating decision, the RO found that the effective date of the June 2003 SOC had been a result of CUE, and assigned an effective date of May 4, 1987, for the grant of a 70 percent evaluation because the Veteran had had an active appeal since that date. In Sharp v. Shinseki, 23 Vet. App. 267, 271 (2009), the Court of Appeals for Veterans Claims (CAVC) considered "whether 38 U.S.C. §§ 1115, 5110(f) requires that entitlement to additional compensation for dependents be premised on (1) only the first rating decision meeting statutory criteria or (2) any rating decision meeting the statutory criteria." The CAVC noted that the statutes are ambiguous on this question of law. Id. at 274. The Supreme Court has held that "interpretive doubt is to be resolved in the veteran's favor." Brown v. Gardner, 513 U.S. 115, 118 (1994), qtd. in Sharp, 23 Vet. App. at 275. The CAVC noted, "It is more favorable to veterans if the effective date for additional dependency compensation is premised on any rating decision meeting the statutory criteria of section 1115, rather than only the first rating decision meeting the statutory criteria." Id. Since section 1115(f) permits a reading by which any rating decision meeting the statutory criteria of section 1115 can be the basis of an effective date for the award of additional compensation benefits for dependents, an expansive reading of the statute is required. Id. at 275-76. Therefore, the CAVC held, "The effective date for additional compensation for dependents shall be the same as the date of the rating decision giving rise to such entitlement." Id. at 276. Furthermore, there could be multiple rating decisions establishing entitlement to additional dependency compensation. Id. Applying the decision from Sharp to the present case, the Board finds that the February 2005 rating decision established entitlement to additional compensation for dependents, even though the Veteran had already met the criteria for such compensation as of the August 1990 Hearing Officer Decision. Since the February 2005 rating decision found that the Veteran has had an active appeal since May 4, 1987, and he has now been awarded a combined evaluation of at least 30 percent as of that date, he is eligible to receive dependency compensation from that date. See 38 C.F.R. § 3.401(b). The Veteran submitted his claim for an earlier effective date for dependency compensation in April 2005, which was within a year after the rating decision. Therefore, the claim was timely. See 38 C.F.R. § 3.401(b). Furthermore, the record shows that the Veteran had submitted proof of the status of his dependants previous to the February 2005 rating decision, and therefore it logically follows that the required proof of dependency was received within a year of the rating decision. The effective date for the additional dependants allowance is therefore May 4, 1987, the date that the Veteran was first eligible based upon a combined evaluation at or above 30 percent for his service- connected disabilities. ORDER Entitlement to an earlier effective date of May 4, 1987, for the additional dependency allowance is granted. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs