Citation Nr: 18140203 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-23 003 DATE: October 2, 2018 ORDER Entitlement to an effective date of September 19, 2012 (earlier than November 25, 2013), for payment of additional compensation for the Veteran’s child, J., as his dependent, is granted. FINDINGS OF FACT 1. In May 1997, a copy of J.’s birth certificate was received showing that he was born in February 1992 and was the son of the Veteran. 2. The Veteran has been assigned a combined rating of 30 percent or more (60 percent) from September 19, 2012. CONCLUSION OF LAW An effective date of September 19, 2012, for the award of compensation benefits for the Veteran’s dependent child, J., is warranted. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an effective date earlier than November 25, 2013 for the grant of dependency benefits for his child, J. Any veteran who is entitled to compensation for service-connected disability is entitled to additional compensation for dependents, including a spouse and child, provided that the disability is rated not less than 30 percent disabling. 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b)(2). Pursuant to 38 C.F.R. § 3.57, except as provided in paragraphs (a)(2) and (3) of this section, the term “child of the Veteran” means 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 the veteran’s household at the time of the veteran’s death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) who, 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 educational institution approved by the Department of Veterans Affairs. See also 38 U.S.C. § 101 (4)(A), 104(a). In general, 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, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant’s dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a 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 (a)(1). Pursuant to 38 C.F.R. § 3.209, age or relationship is established by one of the following types of evidence. If the evidence submitted for proof of age or relationship indicates a difference in the name of the person as shown by other records, the discrepancy is to be reconciled by an affidavit or certified statement identifying the person having the changed name as the person whose name appears in the evidence of age or relationship. The evidence can be: (a) A copy or abstract of the public record of birth. Such a record established more than 4 years after the birth will be accepted as proof of age or relationship if, it is not inconsistent with material of record with the Department of Veterans Affairs, or if it shows on its face that it is based upon evidence which would be acceptable under this section. (b) A copy of the church record of baptism. Such a record of baptism performed more than 4 years after birth will not be accepted as proof of age or relationship unless it is consistent with material of record with the Department of Veterans Affairs, which will include at least one reference to age or relationship made at a time when such reference was not essential to establishing entitlement to the benefit claimed. (c) Official report from the service department as to birth which occurred while the veteran was in service. (d) Affidavit or a certified statement of the physician or midwife in attendance at birth. (e) Copy of Bible or other family record certified to by a notary public or other officer with authority to administer oaths, who should state in what year the Bible or other book in which the record appears was printed, whether the record bears any erasures or other marks of alteration, and whether from the appearance of the writing he or she believes the entries to have been made at the time purported. (f) Affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their own knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge. (g) Other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, school, employment, immigration, or naturalization records. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). 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. § 5110 (f). Regarding additional compensation for dependents, 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: (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. (4) Date of commencement of Veteran’s award. 38 C.F.R. § 3.401 (b). The date of claim for additional compensation for dependents is defined as the 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, the date notice is received of the dependent’s existence, if evidence is received within one year of notification of such rating action. 38 C.F.R. § 3.401 (b)(1). In this case, there is no dispute that J. is the son of the Veteran and was born in February 1992. A copy of J.’s birth certificate was initially furnished to VA in May 1997. Thus, in this case, the date of claim would be the date notice was received of the dependent’s existence which was in May 1997, when J.’s birth certificate was received. However, at that time, the Veteran was not in receipt of a 30 percent rating or more. Thus, he did not have a qualifying rating in May 1997. On November 25, 2013, correspondence advancing a claim of service connection for coronary artery disease (CAD) was submitted. A December 2014 rating decision granted service connection for CAD with an evaluation of 60 percent assigned effective November 25, 2013. Prior to this time, there was no disability rating in effect at 30 percent or higher. (Continued on the next page)   However, in a separate Board decision, the Board granted an earlier effective date of September 19, 2012 for service connection for CAD based on an informal claim. Thus, the Veteran had a qualifying disability rating (a rating of 30 percent or greater) for payment of additional benefits for a dependent child as of September 19, 2012. As such, the Board finds that, since J.’s dependency was established with VA as of May 1997, the latest date per 38 C.F.R. § 3.401 (b) was September 19, 2012, the date of the qualifying disability rating. Therefore, an earlier effective date of September 19, 2012 for payment of additional compensation for the Veteran’s child, J., as his dependent, is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD