Citation Nr: 1512001	
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO.  13-12 891	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an effective date earlier than June 1, 2012 for the addition of the Veteran's child as a dependent for additional compensation purposes.


ATTORNEY FOR THE BOARD

Jack S. Komperda, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 2001 to March 2007. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  By that decision letter, the RO added the Veteran's child as her dependent, effective May 7, 2012 - the date VA received her dependency claim.  The Veteran was notified that her payment start date for her new entitlement amount was June 1, 2012.  The Veteran appealed the July 2012 notice letter to the Board.


FINDINGS OF FACT

1.  The Veteran's child was born in April 2011.

2.  On May 7, 2012, the RO received the Veteran's claim for the addition of her child as a dependent for additional compensation purposes.

3.  The date of commencement of the Veteran's award is June 1, 2012.


CONCLUSION OF LAW

The criteria for an effective date earlier than June 1, 2012 for the addition of the Veteran's child as a dependent for additional compensation purposes have not been met.  38 U.S.C.A. §§ 1115, 5110, 5111 (West 2014); 38 C.F.R. §§ 3.31, 3.155, 3.204, 3.400, 3.401 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The VCAA does not apply to some claims, including the Veteran's.  Livesay v. Principi, 15 Vet. App. 165, 178 (2001).   VCAA notice is unnecessary because the outcome of this issue depends exclusively on documents which are already contained in the Veteran's VA claims folder.  The United States Court of Appeals for Veterans Claims has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide her or him with VCAA notice of the law and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law.  Nelson v. Principi, 18 Vet. App. 407, 410 (2004).

II.  Earlier effective date

The Veteran contends that she is entitled to an effective date prior to June 1, 2012, for the addition of her child for additional compensation purposes.  She asserts in her July 2012 Notice of Disagreement that the effective date should be the date of her child's birth because the date she signed and dated a VA Form 21-686(c) listing the child as her dependent child was April [redacted], 2012, which was within one year of her child's birth on April [redacted], 2011.

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).

A veteran rated at not less than 30 percent shall be entitled to additional compensation for dependents.  38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). 

With regard to an appeal for additional compensation or pension for dependents, the effective date of an award will be the latest of the: (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 one year of the event; otherwise (ii) date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) date 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 veteran's award.  38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b).  

Payment of monetary benefits based on an award or an increased award of compensation may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective.  38 U.S.C.A. § 5111(a); 38 C.F.R. § 3.31.

In this case, on May 7, 2012, VA received VA Form 21-686c, Declaration of Status of Dependents.  The Veteran reported that a child was born on April [redacted], 2011.  In addition, the form lists the Veteran's husband and son as additional dependents.  The birth certificate submitted in support of her claim was also date-stamped as received by VA on May 7, 2012.  In her Notice of Disagreement, the Veteran stated that she "just hadn't filed the form, thought it would be done automatically."

The Veteran met the qualifying disability rating for entitlement to additional compensation for dependents in a February 2008 rating decision.  See 38 U.S.C.A. § 1115.  By that rating action, the RO granted service connection for migraine headaches, assigning a 50 percent disability rating effective March 20, 2007.  The RO also granted service connection for lumbar strain, tinnitus, rosacea, left carpal tunnel syndrome, and right carpal tunnel syndrome, assigning each of these conditions 10 percent disability ratings.  The Veteran's combined service-connected disability rating was 70 percent, effective March 20, 2007.  However, the Veteran's child was not born until years after the February 2008 rating decision.  See 38 C.F.R. § 3.401(b).  As such, the Board finds that this rating decision provides no basis upon which to grant an earlier effective date for the Veteran's claim.

The Board has considered whether an informal claim was received or should have been inferred prior to the date of receipt of the formal claim via VA Form 21-686c on May 7, 2012.  Prior to receipt of the May 7, 2012 claim, the evidentiary record does not contain any additional communication from the Veteran reflecting an intent to apply for the benefits sought.  See 38 C.F.R. § 3.155.  While the Veteran states in her Notice of Disagreement that she believed the addition of her dependent child would be "done automatically," she does not provide any further explanation of this statement.  The Court has held that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  Thus, the Board finds no claim for the additional compensation benefits sought was submitted to VA prior to May 7, 2012.  

In sum, the first claim of entitlement to additional benefits based on a dependent child, with proper evidence of such dependency, was received on May 7, 2012.  As such, that is the effective date of entitlement to additional compensation benefits based on dependency.  See 38 C.F.R. §§ 3.158(a), 3.400, 3.401(b).
 

ORDER

Entitlement to an effective date earlier than June 1, 2012 for the addition of the Veteran's child as a dependent for additional compensation purposes is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs