Citation Nr: 18152199 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-18 092 DATE: November 21, 2018 ORDER An effective date of October 1, 1978, but not earlier, for the addition of the Veteran’s spouse, S.N., as his dependent to his award of VA disability compensation is granted. REMANDED Entitlement to recognition of the Veteran’s son, B.G.N., as his dependent for VA purposes is remanded. FINDINGS OF FACT 1. The Veteran’s April 1963 initial claim for service connection included a claim for recognition of his spouse, S.N. and son, B.G.N., as his dependents for VA purposes. 2. In an October 1963 rating decision, the Veteran was awarded a combined disability rating of 40 percent. 3. In a January 2014 decision, VA first adjudicated the Veteran’s April 1963 claim for recognition of his spouse, S.N., as his dependent for VA purposes. 4. Within one year of VA’s November 2013 request for S.N.’s social security number, the Veteran submitted all necessary information to add his spouse, S.N., as his dependent to his award of VA disability compensation. CONCLUSION OF LAW The criteria for an effective date of October 1, 1978, but not earlier, for the addition of the Veteran’s spouse, S.N., as his dependent to his award of VA disability compensation have been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.102, 3.114, 3.204, 3.400, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served in the Illinois National Guard from November 1956 to March 1963, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). The issue of entitlement to recognition of the Veteran’s daughter, B.A.N., as his dependent for VA purposes was raised in an April 2014 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to an effective date prior to August 1, 2012 for the addition of the Veteran’s spouse, S.N., as his dependent to his award of VA disability compensation. The Veteran’s spouse, S.N. was added as his dependent to his award of VA disability compensation effective August 1, 2012. He contends that an earlier effective date is warranted. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the 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 service member’s award. 38 C.F.R. § 3.401(b) (2017). The “date of claim” for additional compensation for a dependent spouse is the date of the Veteran’s marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent’s existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. 38 U.S.C. § 5102(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits, if proof of dependents is submitted within one year of notice of the rating action. While the Court held that there can be “multiple rating decisions that establish entitlement to additional dependency compensation,” the Court still required that proof of dependent status be submitted within one year of notice of rating action. Id. Dependent compensation benefits were ultimately awarded to the appellant in Sharp on the effective date of the applicable rating increase. VA will accept, for purposes 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 the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. In his April 1963 initial claim for service connection, the Veteran stated that he and S.N. were married in July 1962 in Chicago. The Board finds that this was his initial claim for recognition of his spouse, S.N., as his dependent for VA purposes. In 1965, a minimum disability rating of 50 percent was required for entitlement to additional compensation for dependents. 38 C.F.R. § 3.4(b)(2) (1977). However, effective October 1, 1978, veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. Veterans’ Disability Compensation and Survivors’ Benefits Act of 1978, Public Law 95-479 (codified as amended at 38 U.S.C. § 1115); 38 C.F.R. § 3.4(b)(2) (2017). Accordingly, there are essentially two sets of criteria, the earlier criteria and the current criteria, for the minimum disability rating required for entitlement to additional compensation for dependents. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise, and thus may not apply the current rating criteria prior to its October 1, 1978 effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Super Court and the Federal Circuit). However, this rule does not prohibit the Board from applying the earlier criteria to the period on or after the effective dates of the new rating criteria if the prior versions were in effect during the pendency of the appeal, as is the case here. Therefore, the Board must consider both the earlier and current criteria, as of their effective dates, in order to determine which version would afford the earliest possible effective date for the addition of the Veteran’s spouse as his dependent to his award of VA disability compensation. In an October 1963 decision, the RO granted service connection for left wrist and hand conditions and assigned an initial rating of 40 percent, effective March 12, 1963. The RO did not adjudicate the Veteran’s claim for recognition of his spouse, S.N.., as his dependent for VA purposes. In an October 2013 rating decision, the RO adjudicated several claims. In the November 2013 notification letter, the RO stated that additional development was needed prior to recognition of the Veteran’s spouse and asked the Veteran for S.N.’s social security number. In November 2013, the Veteran submitted a completed VA 21-686c, Declaration of Status of Dependents, that included S.N.’s social security number. In a January 2014 decision, the RO recognized S.N. as the Veteran’s dependent and added her to his award of VA disability compensation. This was the first adjudication of this issue. After a careful review of the record, the Board finds that an earlier effective date of October 1, 1978 is warranted. Clearly, the Veteran submitted a claim for recognition of S.N. as his dependent for VA purposes in April 1963. Unfortunately, this claim was not recognized by VA until November 2013, when VA asked the Veteran to submit S.N.’s social security number, and was not adjudicated by VA prior to the January 2014 decision that granted the benefit sought. While the Veteran’s initial claim as submitted in April 1963, the Veteran did not meet the requirements for an increased rating for dependents until October 1, 1978, the effective date of the liberalizing law that changed the minimum combined disability rating for increased rating for dependents from 50 percent to 30 percent. The effective date of an award pursuant to a liberalizing law shall not be earlier than the effective date of the act. 38 C.F.R. § 3.114. For these reasons, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that an effective date of October 1, 1978 is warranted for the addition of the Veteran’s spouse, S.N., as his dependent to his award of VA benefits. REASONS FOR REMAND 1. Entitlement to recognition of B.G.N. as the Veteran’s dependent child for VA purposes is remanded. As noted above, the Board has determined herein that the Veteran’s April 1963 initial claim for service connection contained a claim for recognition of his spouse, S.N., as his dependent for VA purposes. In his April 1963 initial claim for service connection, the Veteran also stated that his son, B.G.N., was born in April 1963 in Oak Park, Illinois. For the reasons detailed above, the Board finds that the Veteran’s April 1963 claim also contained a claim for recognition of B.G.N. as his dependent child for VA purposes. To date, no development has been done of this claim. Specifically, the Board notes that the Veteran did not submit B.G.N.’s social security number, and VA has not asked the Veteran to submit such information. Thus, remand is required to attempt to obtain B.G.N.’s social security number. The matter is REMANDED for the following action: Send the Veteran a letter asking him to submit any additional information that is needed to grant his claim for recognition of B.G.N. as his dependent child for VA purposes, to include B.G.N.’s social security number. The letter should also afford the Veteran an opportunity to submit any related dependency information, including a copy of VA Form 21-674, Request for Approval of School Attendance. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel