Citation Nr: 1808078 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-17 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to June 18, 2010 for adding the Veteran's child, J.G.C., as a dependent to his award. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2005 to April 2006 and from June 2009 to June 2010, to include service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. VETERAN'S CONTENTIONS The Veteran contends that his child, J.G.C., should have been added to his award as a dependent earlier than June 18, 2010. Specifically, the Veteran has stated that the effective date for the addition of J.G.C. should have been May 1, 2006. FINDINGS OF FACT 1. In August 2006-approximately 4 months after discharge from his first period of active duty service-the Veteran submitted a claim for service connection for back pain, bloody nose, and fever. On his claim form, the Veteran indicated that he was currently married and that he had three biological children: (1) J.R.C., born on June [REDACTED], 1992 in San Antonio, Texas; (2) J.G.C., born on June [REDACTED], 1999; and (3) J.L.C., born on June [REDACTED], 1990. The Veteran provided all of his children's Social Security numbers. However, he did not provide the place of birth for both J.G.C. and J.L.C. 2. Via a May 2007 rating decision, the Veteran was awarded service connection for a lumbar strain with intervertebral disc syndrome, a cervical strain, and bilateral lower extremity radiculopathy. The Veteran's combined disability rating was 30 percent. The effective dates for the awards were April 23, 2006-the first day following the Veteran's discharge from his first period of active duty service. The Veteran's payment began the first day of the month following the effective date-May 1, 2006. 3. In a June 2007 letter notifying the Veteran of the May 2007 rating decision, the Veteran was informed that VA was paying him as a veteran with 2 dependents. He was told to inform VA if there was any change in the status of his dependents. VA also explicitly notified the Veteran that he could not be paid for J.G.C. and J.L.C. because he did not provide their places of birth-i.e., the city and state. 4. In September 2007, another rating decision was issued wherein a claim for service connection for posttraumatic stress disorder was denied. This denial was continued in a separate December 2007 rating decision. 5. In January 2011, the Veteran submitted a statement requesting that J.G.C. be added to his award. Again, the Veteran provided J.G.C.'s date of birth and Social Security number. However, the place of J.G.C.'s birth was not provided. 6. In October 2012, VA received documentation from the Nix Health Care Foundation indicating that J.G.C. was born at the Nix Hospital in San Antonio, Texas on June [REDACTED], 1999. 7. In an April 2013 rating decision, the RO granted service connection for anxiety disorder not otherwise specified. The RO assigned an initial 30 percent rating for this disability, effective June 18, 2010-the first day following discharge from his second period of active duty service. CONCLUSION OF LAW The criteria for an effective date prior to June 18, 2010 for adding the child J.G.C. as a dependent to the Veteran's award have not been met. 38 U.S.C. §§ 501, 1115, 5102, 5107, 5110 (2012); 38 C.F.R. §§ 3.31, 3.204, 3.213, 3.400, 3.401(b) (2017); Sharp v. Shinseki, 23 Vet. App. 267 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans having service-connected disabilities that are compensated at 30 percent or more may be entitled to additional compensation for a dependent 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. § 1135; 38 C.F.R. § 3.4(b)(2). When determining the effective date for an award of additional compensation for dependents, the effective date will be the latest of the following dates: (1) the date of claim, meaning the date of birth of the 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 the VA request; (2) the date dependency arises; (3) the 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 date of the birth or adoption of a child, 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. The earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. 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 to establish a right to VA benefits. 38 U.S.C. § 501. Any person who applies for or is in receipt of any compensation or pension benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the Social Security number of any dependent or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. 38 U.S.C. § 5101(c)(1). 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. Id. at 276-77. Moving beyond Sharp, VA may rely upon a statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. See 38 C.F.R. § 3.204(a)(1). However, in order for VA to rely upon a claimant's statement as proof, it must contain the following information: (1) the date (month and year) of the event; (2) the place of the event; (3) the full name of the proposed dependent; (4) the relationship of the proposed dependent to the claimant; and (5) the Social Security number of the proposed dependent. Id. In the instant case, the first time VA received all of the above listed criteria was in October 2012. Although the Veteran provided J.G.C.'s date of birth, his full name, his status as his biological child, and his Social Security number in his initial August 2006 claim form, he omitted J.G.C.'s place of birth. This information was not provided to VA until October 2012 via documentation from the Nix Health Care Foundation. Applying the holding of Sharp v. Shinseki, in the February 2017 supplemental statement of the case, the RO noted that it had retroactively added J.G.C. as a dependent effective June 18, 2010 as it was in receipt of J.G.C.'s place of birth at the time of an April 2013 rating decision. The RO assigned June 18, 2010 as the effective date to add J.G.C. as it was the earliest effective date assigned in the April 2013 rating decision itself for the grant of service connection for anxiety disorder not otherwise specified. After reviewing the evidence of record, the Board finds that evidence indicating J.G.C.'s place of birth was not received within one year of notification of the May 2007 rating decision. Further, VA was not in receipt of the place of birth information at the time of the September and December 2007 rating decisions or at any other time of subsequent rating whereby an effective date prior to June 18, 2010 was assigned. Accordingly, an effective date prior to June 18, 2010 is not warranted in the instant case. There is no reasonable doubt to be resolved. ORDER An effective date prior to June 18, 2010 for adding the Veteran's child, J.G.C., as a dependent to his award is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs