Citation Nr: 1757518 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-06 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to May 1, 2011, for the award of dependent compensation for S.C., the Veteran's child. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from October 1976 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript is of record. FINDINGS OF FACT 1. In April 2003, the RO notified the Veteran in writing that he needed to submit the adoption decree for S.C. within a year in order for her to be added as a dependent for VA benefits purposes. 2. On July 19, 2011, the RO received the Final Decree of Adoption for S.C. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than May 1, 2011, for the award of additional compensation for the Veteran's dependent child, S.C., have not been met. 38 U.S.C. § 1115 (2012); 38 C.F.R. § § 3.31, 3.57, 3.401(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veteran's claim for entitlement to an earlier effective date for the award of additional compensation for his child, S.C., arises from his disagreement with the effective date assigned following the award of additional compensation. As the underlying claim, the award of additional compensation for S.C., was granted, further notice as to the downstream issue of the effective date of the award is not required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to the duty to assist, the Board finds that this has been fulfilled. The Board notes that adjudication of a claim for an earlier effective date is usually based upon evidence already in the claims file; the resolution of this claim depends upon when certain information was received by VA and whether VA sent the Veteran certain information. There is no indication of any outstanding records that could be obtained or other action that VA could take to assist the Veteran in substantiating his claim. II. Earlier Effective Date The Veteran is seeking an effective date earlier than May 1, 2011 for the award of dependent compensation for S.C., his adopted child. Veterans having a service-connected condition evaluated at a disability rating of 30 percent or more may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18, or under 23 if attending an approved school, or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C. § 1115 (2012); 38 C.F.R. § 3.4(b)(2) (2017). The term "child" is defined, for purposes of VA benefits, as an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of his household at the time of the veteran's death, or an illegitimate child; and who is (i) under the age of 18 years; (ii) before the age of 18 years became permanently incapable of self-support; or (iii) after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. 38 U.S.C. § 101(4)(A) (2012); 38 C.F.R. § 3.57 (2017). Under VA regulations, an adopted child means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrestricted interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. 38 C.F.R. § 3.57(c). The effective date for additional compensation for dependents 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 "date of claim" for additional compensation for dependents is the latest of (1) the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; or, if section (1) is not satisfied, (2) the date notice is received of the dependent's existence, if evidence is received within a year of notification of VA's request; the date dependency arises; or the effective date of qualifying disability rating provided evidence of dependency is received within a year of the notification of such rating action. 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 (2017). When the Veteran filed his original claim for service connection by completing VA Form 21-526, Veteran's Application for Compensation and/or Pension, he indicated that S.C. is his daughter by adoption. The Veteran has been eligible for additional compensation for dependents since August 4, 2002, the date service connection went into effect with a disability evaluated as at least 30 percent disabling. Pursuant to an April 2003 rating decision, his service-connected disabilities have been evaluated as at least 30 percent disabling as of that date. See 38 C.F.R. § 3.4(b)(2). A letter from VA notifying the Veteran of the April 2003 rating decision informed him that he needed to submit a copy of the legal adoption papers before additional benefits could be paid for S.C. as a dependent and that he had a year from the date of the letter to submit it. The requested information was not submitted to VA within a year. The Veteran completed and submitted a Status of Dependents Questionnaire in April 2011 and July 2011 that included information about S.C. The September 1998 final adoption decree for S.C. was submitted to VA in July 2011. On August 1, 2011, VA sent the Veteran a letter stating that the adoption decree for S.C. had not been received. An RO employee wrote in an August 2, 2011, email to the Veteran that evidence regarding dependents requested in the August 1, 2011, letter had been found by the RO. The Board notes that the email is referring to the adoption decree that was received in July 2011. In an August 5, 2011, decision, the RO awarded dependent compensation for S.C. as of May 1, 2011, which was the first of the month following the Veteran's claim for dependents to be added to his award. The Veteran wrote in January 2013 that he did not receive the April 2003 requesting information or verification regarding S.C., and that had he received it, he would have responded quickly. The Veteran testified at the September 2017 Board hearing that he did not receive the April 2003 letter from VA. He lived at the same address then as now and has not had trouble with mail delivery. Furthermore, he kept on top of his paperwork. Reviewing the record, the Board notes that the April 2003 letter was sent to the Veteran's address of record. There is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Therefore, under the presumption of regularity, the Veteran is presumed to have received the April 2003 letter from VA. See Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). While the Board is sympathetic to the Veteran's claim and has considered his equitable contentions, there is no provision in the law or regulations for making payments for his daughter S.C. beyond the date of eligibility. The Board is bound by the statutory scheme created by Congress, and is not permitted to award payments other than as authorized by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992) citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990) ("[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which 2has not been provided for by Congress."). The legal documents regarding the Veteran's adoption of S.C. were received by VA in April 2011, which was more than a year after they were requested in April 2003. There is no basis to grant an effective date earlier than May 1, 2011. See 38 C.F.R. § 3.401(b). As the preponderance of the evidence is against the Veteran's claim for an effective date earlier than May1, 2011, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date earlier than May 1, 2011, for the award of additional dependent compensation for S.C., the Veteran's child, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs