Citation Nr: 1307764 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-49 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an earlier effective date for additional VA disability compensation based on having a dependent child, which was first included in the Veteran's award May 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to September 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 decision by the Louisville, Kentucky Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO awarded the Veteran additional VA disability compensation based on her having a dependent child. The RO first included that additional compensation in the Veteran's award effective May 1, 2008. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. A June 2005 rating decision first established the Veteran's entitlement to a combined 30 percent disability rating effective December 30, 2004. 2. In June 2005, the RO informed the Veteran that in order to receive additional benefits based on having dependents she would have to file a declaration of status of dependents form. 3. The Veteran's first submission of dependent information after the June 2005 qualifying disability rating was a declaration received in April 2008. CONCLUSIONS OF LAW 1. The earliest disability rating qualifying the Veteran for additional disability compensation based on having dependents was effective December 30, 2004. 38 U.S.C.A. §§ 1115, 5107 (West 2002); 38 C.F.R. § 3.4(b)(2) (2012). 2. The criteria are not met for an effective date of dependent status of the Veteran's son, for additional compensation purposes, earlier than in April 2008, nor for entitlement to payment of additional compensation based on that dependent earlier than May 1, 2008. 38 U.S.C.A. §§ 5107, 5110, 5111 (West 2002); 38 C.F.R. § 3.401(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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. The VCAA redefined VA's duty to assist a claimant in the development of a claim for VA benefits. 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) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The issue on appeal in this case is the effective date for additional VA disability compensation based on having dependents, in this case a dependent son. In June 1996 the Veteran first filed a claim for service connection for a disability and VA disability compensation. The Veteran included with her claim a completed declaration of status of dependents form. The Veteran's 1996 claim was filed several years before the passage of the VCAA. The RO's July 1996 notice to the Veteran regarding the processing of her claim did not address the issue of dependents. The Veteran's inclusion of the dependents form, however, indicates that she had at least some awareness that additional benefits were available based on dependents. In a June 2005 letter, the RO informed the Veteran that she had become entitled to a 30 percent combined disability rating, and informed her that in order to receive additional benefits based on having dependents she would have to file a declaration of status of dependents form. The Veteran's claims file contains records of claims she has filed and notices and decisions that the RO has sent to the Veteran. The Veteran has not identified any evidence potentially relevant to the issue on appeal that is not associated with the claims file. The Board finds that the Veteran was notified and aware of the evidence needed to support her claim with respect to the issue on appeal, as well as the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, she was provided with a meaningful opportunity to participate in the claims and appeals processes, and she has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the present appeal on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Effective Date Issue The Veteran is seeking an effective date earlier than the effective date the RO assigned for additional VA disability compensation based on having a dependent child. A veteran who is entitled to VA disability compensation, and whose service-connected disabilities have a combined rating not less than 30 percent, is entitled to additional compensation for dependents, including one or more children under the age of eighteen years or over eighteen but in school. See 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Unless otherwise provided, the effective date of an award based on an original claim or a claim for increase of disability compensation shall be fixed in accordance with the facts found, but shall not be earlier that the date of receipt of application for that benefit. 38 U.S.C.A. § 5110(a). Payment of an increased award of compensation is to be made not earlier than the first day of the calendar month following the month in which the increased award became effective. 38 U.S.C.A. § 5111. An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the 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 notification of such rating action. 38 U.S.C.A. § 5110(f). VA regulations at 38 C.F.R. § 3.401(b) provide that the effective date for the award of additional compensation for a dependent is the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within 1 year of the event; otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In June 1996, the Veteran submitted a claim for service connection and disability compensation for a knee disability. At the same time she submitted a declaration of status of dependents. She declared as her dependents a daughter born in 1982 and a son born in 1991. In an April 1997 rating decision, the RO granted service connection, effective in June 1996, for chronic right knee pain and swelling. The RO evaluated the disability under the VA rating schedule Diagnostic Code 5257, and assigned a disability rating of 10 percent. In December 2004, the Veteran filed a claim for increased compensation for right knee disability, and for service connection and compensation for left knee disability, claimed as secondary to right knee disability. In a June 2005 rating decision, the RO changed the way the Veteran's right knee disability was compensated. For the right knee disability evaluated under Diagnostic Code 5257, the RO changed the description to right knee instability. The RO continued a 10 percent rating for that disorder. The RO granted separate service connection, effective December 30, 2004, for right knee degenerative joint disease. The RO evaluated that disorder under Diagnostic Code 5010, and assigned a 10 percent disability rating. The RO also granted service connection, effective December 30, 2004, for left knee degenerative joint disease associated with right knee instability. The RO assigned a 10 percent rating for that disorder. As a result of the actions in that rating decision, effective December 30, 2004, the combined rating for the Veteran's service connected disabilities was 30 percent. The RO issued the June 2005 rating decision to the Veteran with a June 2005 transmittal letter. In that letter, the RO informed the Veteran, "We are paying you as a single veteran with no dependants." In the same letter, the RO informed the Veteran that she might be entitled to additional benefits for her dependants. The RO indicated that to claim such benefits she was to complete and return a declaration of status of dependents. The RO enclosed a copy of that form. The claims file does not contain any indication that the Veteran returned the dependents form or otherwise addressed the dependents issue during the year following the June 2005 notification of the June 2005 rating decision. In April 2008, the Veteran filed a claim for service connection for a back disability claimed as secondary to service-connected knee disabilities. At the same time, the Veteran submitted a declaration of status of dependents. She listed as her dependent her son born in 1991. In a February 2009 rating decision, the RO granted service connection for lumbar spine disability, and denied service connection for some other claimed disabilities. The RO issued the decision in February 2009 with a transmittal letter. In that letter, an RO official indicated that the Veteran was entitled to the higher compensation rate beginning May 1, 2008. The official indicated that VA was paying the Veteran as a veteran with one dependent. The official informed the Veteran that the amount added based on the dependent would discontinue when her son reached age eighteen. In April 2009, the Veteran filed a notice of disagreement with the effective date for adding additional compensation based on her having a dependent son. She noted that in 1996 when she filed her first claim for VA disability compensation she informed VA of her dependents, including her son. She contended that the amount of her benefit should have been calculated based on having her son as a dependent effective from the date of her 1996 claim. In a May 2009 statement, the Veteran wrote that she was aware that having dependents did not increase the amount of disability compensation unless disabilities had a 30 percent rating. She noted that she began receiving compensation based on a 30 percent rating in January 2005. She indicated that her daughter was over eighteen years old by 2005, but that her son was still under eighteen then. She argued that a compensation rate based on having one dependent child should have begun effective with the onset of her 30 percent rating. In a December 2009 statement, the Veteran argued that her submission of information on her dependents in 1996 made VA aware of the existence and ages of her dependent children. She asserted that when she became entitled to a 30 percent rating, she became entitled to additional compensation based on any dependents, and that additional compensation based on her still under eighteen son should have become effective then. She stated that she did not file a new dependents declaration form in 2004 or 2005 because the information regarding her son that she provided in 1996 had not changed. In a February 2013 statement, the Veteran's representative expressed the Veteran's argument that VA was aware of her dependents before her 2004 claim, and that it therefore was not necessary to file information on her dependents again in 2004 or 2005 in order to be entitled to compensation based on dependents when she became entitled to a 30 percent rating. A veteran is entitled to receive additional compensation for dependents if the veteran has disability rated at not less than 30 percent. See 38 U.S.C.A. § 1115. As the Veteran first had disability rated at 30 percent effective in December 2004, the June 2005 rating decision that granted ratings reaching that level is the qualifying disability rating described in 38 C.F.R. § 3.401(b)(3), that is, the decision that established that she qualified for compensation for disability rated at not less than 30 percent and thus qualified for additional compensation for dependents. The December 30, 2004, effective date of the combined 30 percent rating established in the June 2005 rating decision could have been the effective date of the award of benefits for a dependent, if evidence of dependency had been received within one year of notification of that rating. Evidence regarding the status of the Veteran's dependents was not received during that year, however. The Veteran argues that the evidence she submitted earlier, in 1996, should count. Notice of the status of the Veteran's dependents in 1996, however, does not necessarily support projection of that information forward and assumptions as to the status of her dependents a number of years later. In the intervening eight-year time period, any number of events could have occurred which affected the number of dependents the Veteran had. In the June 2005 transmittal letter the RO informed the Veteran that the award at that time was based on her having no dependents. The RO stated that additional benefits were available if she had dependents, and told her to file a form to claim such benefits. That explicit notice was more than sufficient to inform the Veteran that VA was not determining status of any dependents she might have based on any earlier evidence, and that it was necessary for her to submit evidence after the June 2005 notice as to her dependents. As VA informed the Veteran that she had to submit information about the status of her dependents after the June 2005 notice in order to get additional compensation for dependents, it was reasonable to hold her to a requirement to submit the information anew after the qualifying rating. The Veteran eventually resubmitted the information after the qualifying 2005 rating; she did so in a declaration form dated April 4, 2008. The RO increased her monthly benefit to account for her having a dependent son beginning May 1, 2008, the first day of the month after she submitted the evidence. The RO's action accepting the April 2008 declaration as first notice, after the qualifying rating, of the Veteran having a dependent, and beginning entitlement to the higher amount effective the first day of the month after receiving notice from the Veteran, was in accordance the rules and procedures under 38 U.S.C.A. §§ 5110 and 5111 and 38 C.F.R. § 3.401(b) for awarding that benefit. As the Veteran did not, after the qualifying disability rating, provide evidence of dependency until April 2008, the preponderance of the evidence is against entitlement to the benefit increase based on having the dependent earlier than May 1, 2008. The Board thus denies the appeal. ORDER Entitlement to additional disability compensation, based on having a dependent child, earlier than May 1, 2008, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs