Citation Nr: 1322046 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 13-00 109A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than March 1, 2012, for award of increased compensation benefits based on a dependent spouse and children. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2013 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York that granted additional benefits based on a dependent spouse and two dependent children effective from March 1, 2012. FINDING OF FACT The Veteran's claim for additional benefits for dependents was received by VA on February 24, 2012. CONCLUSION OF LAW The criteria for an effective date of dependency compensation earlier than March 1, 2012, are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.4, 3.31, 3.151, 3.204, 3.215, 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). This appeal is a "downstream" appeal from an RO decision that granted the benefit claimed (entitlement to increased compensation based on dependents). In Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where the benefit has been granted and an initial disability rating and effective date have been assigned, the typical claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007). In any event, the Veteran has not alleged any prejudice due to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Medical examination is not relevant to the issue on appeal. The Veteran has been advised of his entitlement to a hearing before the RO's hearing officer or before a Member of the Board, but he specifically declined such a hearing. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and he has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. In sum, based on a review of the claims file, the Board finds there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duties to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Principles Additional compensation may be paid for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2). Regardless of VA regulations concerning effective dates of awards, and except as elsewhere provided, payment of monetary benefits based on original, reopened or increased awards of compensation may not be made for any period prior to the first day of the calendar month after which the award becomes effective. 38 C.F.R. § 3.31. A specific claim in the form prescribed by the Secretary must be filed in order for the benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. Except as otherwise provided, VA will accept for the purpose of determining entitlement to benefits under laws administered by VA the statement of a claimant as proof of marriage, provided that the statement contains the date (month and year) and place of the event and the full name and relationship of the person to the claimant. In addition, the claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.204. Marriage is established by evidence including an abstract of the public record of a marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of the marriage and the number of prior marriages if shown on the official record. 38 C.F.R. § 3.205(a). For the purpose of establishing entitlement to a higher rate of compensation based on the existence of a dependent, VA will require evidence that satisfies the requirements of 38 C.F.R. § 3.204 cited above. 38 C.F.R. § 3.213. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim that has been reopened or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran had a combined evaluation of 20 percent for his service-connected disabilities from September 1, 2001, to October 21, 2008. A rating decision issued in October 2009 granted additional service connection that resulted in a combined evaluation of 30 percent effective from October 21, 2008. In conjunction with the October 2009 rating decision cited above the RO sent the Veteran a notification letter advising him that he had been granted additional compensation resulting in an overall or combined rating of 30 percent. The notice letter informed the Veteran as follows: "We are paying you as a single veteran with no dependents." The letter included a paragraph entitled Evidence We Need from You to Complete Your Claim for Dependents (emphasis in original). The paragraph advised the Veteran that before additional benefits could be paid for dependents it would be necessary for the claimant to submit a VA Form 21-686c (Declaration of Status of Dependents); a copy of that form was enclosed in the letter. The notice letter in October 2009 also included a paragraph entitled When and Where to Send the Information or Evidence (emphasis in original) advising the Veteran that benefits could be made payable from the date the claim was received if the information was received within one year of the date of the letter. If the evidence was not received within one year of the date of the letter, benefits would be payable only from the date the evidence was actually received. The Veteran did not respond until February 24, 2012, more than one year after the October 2009 notice letter cited above. On that date the RO received from the Veteran a VA Form 21-686c naming his spouse, a son (who was at the time 19 years old) and two daughters (who were both under 18 years of age). The Veteran asserted that he had not been previously informed that there was a difference in compensation between single veterans and veterans with dependents, and that he was accordingly certain he was entitled to 10+ years of retroactive benefits for his dependents (back to 2001, when service-connection was first established). In March 2012 the RO issued the administrative decision on appeal granting increased compensation benefits based on the Veteran's dependent spouse and two dependent minor daughters, effective from March 1, 2012 (the first day of the month after the claim was received). The letter advised the Veteran that dependency benefits had been denied for his son, who was over 18, but that benefits could be granted if the son was still in school; the Veteran was invited to submit a VA Form 21-674 if that was the case. The Veteran submitted a Notice of Disagreement (NOD) in June 2012 arguing that he was interviewed by a VA counselor in August 2001, at which time he was married and had three children; the VA counselor advised the Veteran that he would receive 20 percent disability compensation, and "that was that." The Veteran only recently found out that he had been entitled to payment for dependents. The Veteran asserted the VA counselor had not properly informed him of his benefits and that he was entitled to money from that point. Although the Veteran now asserts entitlement to dependency benefits retroactive to 2001, review of the evidence shows that prior to October 21, 2008, the Veteran's disability rating was 20 percent. He was accordingly not eligible for compensation for dependents earlier than that date. 38 C.F.R. § 3.4(b)(2). Compensation, to include increased compensation, is payable effective from the date of a claim or the date entitlement arose, whichever is later; see 38 C.F.R. § 3.400. Entitlement in this case arose in October 2008 when he was awarded compensation at the 30 percent rate, but the Veteran's claim for additional benefits for dependents was not received until February 2012. An effective date of March 1, 2012, was accordingly correctly assigned. See 38 C.F.R. § 3.31. The Veteran has complained that he was misinformed regarding benefits available, to his detriment. The Board disagrees. The evidence of record clearly shows the Veteran was promptly notified in October 2009 that he had become eligible for dependency benefits, but that payment of such benefits was contingent on submission of appropriate documentation. The letter provided the requisite documents for the Veteran to fill out, and advised him of the consequences that would result if the documents were not submitted within one year. The evidence of record does not show, and the Veteran does not assert, that he actually submitted a VA Form 21-686c or equivalent documents prior to February 2012. To the degree that the Veteran asserts ignorance that veterans with and without dependents were paid at different rates, the Board reiterates that the Veteran's eligibility for dependency benefits did not arise until October 2008. Further, the United States Court of Appeals for Veterans Claims, citing to an opinion by the United States Supreme Court, has held that anyone dealing with Government is charged with knowledge of Federal statute and agency regulations; see Morris v. Derwinski, 1 Vet. App. 260 (1991). Finally, VA is under no legal obligation to individually notify every potential claimant of his or her possible entitlement to VA benefits. Lyman v. Brown, 5 Vet. App. 194 (1993); Hill v. Derwinski, 2 Vet. App. 451 (1991). In any event, as noted above, the RO did notify the Veteran in the October 2009 notice letter of his potential entitlement to additional benefits for dependents contemporaneous to when eligibility for such arose. In arriving at the determination above the Board has carefully considered the services rendered by the Veteran. However, while the Board is sympathetic toward the Veteran, the Board is bound by law, and its decision is dictated by the relevant statutes and regulations. Moreover, the Board is without authority to grant benefits simply because it might perceive such a grant to be equitable. See 38 U.S.C.A. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board also observes that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). In sum, the Board has found that the criteria for an effective date earlier than March 1, 2012, for award of dependency benefits are not met. Accordingly, the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER An effective date earlier than March 1, 2012, for award of dependency benefits is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs