Citation Nr: 18153129 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-50 950 DATE: November 27, 2018 ORDER Entitlement to an effective date of November 29, 2004 for establishment of the Veteran's son as a "helpless child" on the basis of permanent incapacity for self-support is granted. FINDING OF FACT 1. A September 2002 rating decision denied establishment of the Veteran's son C.M. as a "helpless child" on the basis of permanent incapacity for self-support; the Veteran initiated an appeal, but he did not perfect it after a statement of the case was issued in August 2003. 2. The Veteran’s Declaration of Status of Dependents received on November 29, 2004 is an informal claim for benefits to establish his son as a “helpless child” on the basis of permanent incapacity for self-support. 3. A March 2007 rating decision denied permanent incapacity for self-support and March 2008 correspondence is a timely notice of disagreement with this decision. 4. An appeal for permanent incapacity for self-support for a helpless child was perfected in November 2009 and the claim was granted in an April 2014 rating decision. CONCLUSION OF LAW The criteria for the assignment of an effective date of November 29, 2004 for establishment of the Veteran's son C.M. as a "helpless child" on the basis of permanent incapacity for self-support have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1969. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date prior to May 12, 2008 for establishment of the Veteran's son as a "helpless child" on the basis of permanent incapacity for self-support. An April 2014 rating decision granted the Veteran’s claim to establish his son C.M. as a “helpless child” based on permanent incapacity for self-support and an effective date of March 12, 2008 was established based on the date the most recent claim was received. The Veteran has appealed this decision and contends that the effective date should date back to when he first filed his claim in 2001 since VA had been aware then that there were pertinent Social Security Administration records. See June 2004 NOD. Based on a review of the record, the Board finds that an effective date of November 29, 2004 is warranted. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claims were received by VA prior to that date, the former regulations apply. The effective date for the grant of compensation, including helpless child benefits, based on an original claim 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; 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA must look to all communications from a Veteran which may be interpreted as applications or claims - formal and informal - for benefits. VA has a duty to fully and sympathetically develop the Veteran’s claim, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran’s initial claim was received on October 1, 2001 and denied in a September 2002 rating decision. See October 2001 VA 119 Report of Contact. The Veteran filed a notice of disagreement in January 2003 and a statement of the case (SOC) was issued in August 2003. See October 2002 NOD and August 2003 SOC. The RO did not receive a substantive appeal within one-year of the rating decision or within 60 days of the SOC, so the rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Although the Veteran asserts the claim had not been properly developed, that does not affect the finality of the decision. Therefore, the Board must review all communications after the September 2002 decision and before the May 2008 claim. The Board finds that an informal claim was received on November 29, 2004 when the Veteran filed a Declaration of Status of Dependents claim. On that form, he identified his son C.M. as a dependent who was permanently helpless for mental or physical reasons. Notably, when the RO made a decision on his dependents concerning his award, the RO noted that the Veteran claimed C.M. as a helpless child and notified him of what evidence was needed to determine if he was a “helpless child.” See February 2004 Notification Letter. Thus, it appears the RO considered the form as a possible informal claim to establish C.M. for permanent incapacity for self-support. The Board finds that this communication satisfies the requirement for an informal claim. The RO did not take any action until the Veteran submitted another statement that is dated May 13, 2004 but date stamped January 30, 2007 that identified pertinent evidence. This was accompanied by a statement in which he clearly raised the claim again. See January 2007 Statement in Support of Claim. The RO denied the claim in a March 2007 rating decision. Within one year of the March 2007 rating decision, the RO received a statement that the Board construes as a notice of disagreement. See March 2008 Statement in Support of Claim. Pursuant to 38 C.F.R. § 20.201, an NOD need only express dissatisfaction or disagreement with an adverse decision and a desire to contest the result; no special wording is required. Read liberally, the March 2008 statement satisfied these requirements. Therefore, since an appeal was initiated, the next step was for the RO to issue a statement of the case. Until that time, a claim had remained pending since November 29, 2004. The RO did not issue a statement of the case until the Veteran filed a notice of disagreement with a March 2009 rating decision. A timely substantive appeal was filed in November 2009, which eventually led to the grant of the claim in an April 2014 rating decision. As the Board pointed out previously, the claim had been pending since November 29, 2004, so this date is established as the appropriate effective date for the granted claim. In a June 2018 brief, the Veteran’s representative asserts the effective date should be established based on the original claim since the RO did not consider a Social Security Administration (SSA) letter that was received in July 2002. This conclusion was reached because the record was not listed in the “evidence” portion of the rating decision. Although the SSA document, which was dated February 8, 2002 was not listed in the rating decision, other documents such as a June 2002 Deferred Rating Decision and July 2002 Report of Contact, show it was considered even if not specifically noted in the September 2002 rating decision. Accordingly, an effective date of November 29, 2004, but no earlier, is established. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst