Citation Nr: 1122997 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 11-01 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an earlier effective date prior to June 1, 2009, for the addition of a dependent child to the award of nonservice connected pension benefits. ATTORNEY FOR THE BOARD M. H. Stubbs, Associate Counsel INTRODUCTION The Veteran served on active duty from March to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Please note the Veteran has requested information regarding receiving continued pension benefits for his dependent child past the age of 18, due to college enrollment. FINDINGS OF FACT 1. The Veteran filed a claim of entitlement to a permanent and total disability evaluation for pension purposes on July 27, 2006. He reported having one dependent child who lived with him. 2. In his July 2006 application the Veteran was specifically asked to provide VA with his child's Social Security number, income and net worth but he did not provide that information. 3. In January 2007, the Veteran was notified that he had been awarded pension benefits as a single Veteran effective from August 1, 2006. He was notified that to be awarded additional monetary pension benefits based on a dependent child he needed to provide VA with his child's Social Security number, and the amount of income he received. 4. On January 31, 2007, the Veteran submitted a formal Declaration of Status of Dependents, VA Form 21-686c. This form, while incorrectly filled out, contained the Social Security number of his dependent child. It did not provide VA with any information concerning that child's income and net worth. 5. In May 2009, the Veteran submitted a VA Form 21-686c, and identified the name of his child and that child's Social Security number. He did not provide VA with any information concerning the child's income and net worth. 6. In December 2009, VA contacted the appellant and learned that his child was entitled to a monthly check from the Social Security Administration, but those monies were paid to the child's mother from whom the Veteran was divorced. The Veteran informed VA that his child's net worth was zero. CONCLUSION OF LAW The criteria are not met for the assignment of an effective date prior to June 1, 2009, for the payment of additional pension benefits for the Veteran's dependent child. 38 U.S.C.A. § 5110(f) (West 2002 & Supp. 2010); 38 C.F.R. § 3.401(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). In this case, the appellant was informed in his July 2006 application, which he had prior to the decision granting the Veteran a permanent and total disability evaluation for pension purposes, that he needed to provide VA with the name of any dependent child, as well as that child's Social Security number, income and net worth. The claim was thereafter adjudicated. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. 38 C.F.R. § 3.159(c) (2010). He was provided the opportunity to present pertinent evidence and testimony, and there is no assertion that VA has failed to obtain any evidence requested or identified. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Thus, the Board may address the merits of the appeal without prejudice to the Veteran. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Laws and Regulations The effective date of an award of pension based on an original claim will be the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (2010). Additionally, 38 C.F.R. § 3.401(b) provides a specific rule governing the effective date of additional compensation on account of dependents. The effective date of the award of any benefit or any increase therein by reason of 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 birth, or adoption. 38 U.S.C.A. § 5110(n). The enabling regulation provides with respect to the effective date for additional pension for dependents that the effective date will be the latest of the following dates: (1) Date of claim: This term means the following, listed in their order of applicability: (a) Date of birth of the child or of adoption, if the evidence of the marriage is received within one year of the event; otherwise, (b) date notice is received of the dependent's existence, if evidence is received within one year of VA request. (2) Date the dependency arises. (3) Effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of a veteran's award. 38 U.S.C.A. § 5110 (f), (n); 38 C.F.R. § 3.401(b). The regulations also provide that VA will accept the written statement of a claimant as proof of birth of a child for purposes of determining entitlement, provided the statement contains the date (month and year) and place of the marriage and the full name and relationship of the other person to the claimant. 38 C.F.R. § 3.204(a)(1). Factual Background and Analysis On July 27, 2006 the Veteran submitted a formal claim of entitlement to a permanent and total disability evaluation for pension purposes via a VA Form 21-526. On the form he indicated that he had a dependent child who lived with him. The Veteran did not supply the child's Social Security number on the form. On the section entitled "Tell us about your net worth and your dependent's net worth" the Veteran only supplied his own net worth information. He did not provide his child's income or net worth. There is an August 2006 "Nonservice connected Pension Worksheet" contained in the claims folder which includes a handwritten note that the dependent child's Social Security number and income were needed "before considering." The handwritten note directs that a VA Form 21-686c be provided to the Veteran. In January 2007, the RO sent notice to the Veteran that he was granted nonservice connected pension, with payment effective August 1, 2006. The notification letter stated that the Veteran was to receive monthly benefits at the rate prescribed for a single veteran with no dependents. The notification noted that the VA could not provide payment for his dependent child because he had not provided VA with his child's Social Security number and did not tell VA whether the child was receiving any kind of income or had any net worth. The letter advised that for VA to pay additional pension benefits for a dependent the Veteran would have to complete and return the enclosed copy of VA Form 21-686c (Declaration of Status of Dependents). He was also specifically directed to provide VA with evidence of his child's income and net worth. It was explained that payment from the date the RO received the Veteran's claim for compensation benefits was possible if VA Form 21-686c was received within one year of the notification letter; otherwise, payment based upon additional dependents would be possible only from the date that the form was actually received. On January 31, 2007, the Veteran submitted a VA Form 21-686c (Declaration of Status of Dependents). He provided VA with his dependent child's name and Social Security number. (He did so in blocks meant for him rather than his son, but the appellant's intent was clear.) He did not provide VA with any information regarding his child's income or net worth. VA letters dated December 2007 and November 2008, informed the Veteran that if there was any change in the number of his dependent he should notify the VA immediately. In May 2009, the Veteran again submitted a VA Form 21-686c (Declaration of Status of Dependents), only this time filled out the information in the correct boxes. He also indicated that he had a different address than prior correspondence. Once again, he did not provide VA with any information regarding his child's income or net worth. Based on the information in the May 2009 form, VA made a Social Security Administration (SSA) inquiry based on the dependent child's name and social security number. In December 2009, the RO contacted the Veteran by phone and confirmed that the dependent child lived with him, and determined that the child received Social Security Income until his 18th birthday, but that the income was payable to the child's mother, and was not available to the Veteran. The appellant further provided VA with notice that his child's net worth was zero. In February 2010, the Veteran was notified that his disability pension award was amended based on his change in dependency, which VA received notice of in May 2009. He was provided an additional benefit amount for his dependent child from June 1 to November [redacted], 2009, the dependent child's 18th birthday. In a May 2010 notice of disagreement the Veteran indicated that he first told VA about his son on his 2006 application, and that when asked for his son's Social Security number that he supplied it. He also indicated that his son was going to college and that he needed information and help regarding continued dependent benefits. In the June 2010 Statement of the Case, the Decision Review Officer incorrectly stated that the Veteran's January 2007 VA Form 21-686c did not list the child as a dependent. While the Veteran filled out the paperwork incorrectly, it was known to VA from his 2006 claim that he had a dependent child. That information was again provided when the appellant filled out a January 2007 form which contained both his and his dependent's names and Social Security numbers. Therefore, though the form was filled out incorrectly, this information was now in the custody of VA. Significantly, however, it was not until December 2009 that the Veteran provided VA with notice of his child's income and net worth despite being asked for that information in July 2006 and January 2007. The law governing effective dates is clear in providing that sufficient evidence of additional dependents must be received within one-year of an award, to warrant the assignment of an effective date premised on the original date of claim for compensation benefits. 38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b). Given the fact that the appellant did not provide VA with any information concerning his child's income and net worth until December 2009, there is no basis to grant entitlement to additional compensation based on a dependent child prior to June 1, 2009. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.401. The appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to an effective date prior to June 1, 2009, for additional monetary pension benefits based on a dependent child is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs