Citation Nr: 1825845 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 12-10 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an effective date prior to April 18, 2011, for the award of an additional allowance of Dependency and Indemnity Compensation (DIC) for K.F., the Veteran's adopted child. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1969 to October 1970. The Veteran passed away in February 2002. The appellant is the Veteran's surviving spouse. This appeal arises to the Board of Veterans' Appeals (Board) from a May 2014 Decision Letter issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which awarded an additional allowance of DIC for K.F., the Veteran's adopted child, effective from April 18, 2011. The appellant filed a Notice of Disagreement (NOD) in June 2014, which contested the effective date. The RO furnished the appellant a Statement of the Case (SOC) in September 2014. The appellant filed a Substantive Appeal (VA Form 9) in October 2014. FINDINGS OF FACT 1. The Veteran passed away in February 2002. 2. The appellant's claim for dependency and indemnity compensation on behalf of K.F., the Veteran's adopted son was received by VA in April 2005. 3. The June 2008 Board decision, denying recognition of K.F. as the Veteran's adopted child for VA purposes, was neither appealed to the Court nor reconsidered by the Board, and thus became final as of the date stamped on the face of that decision. 4. A letter from the Office of the Attorney General regarding the adoption of K.F., was received by VA on April 18, 2011, and was accepted as a claim to reopen the matter of whether K.F. was entitled to be recognized as the Veteran's adopted child for VA purposes. 5. Evidence received on April 18, 2011, constituted new and material evidence, and was sufficient to reopen the claim. CONCLUSION OF LAW The criteria for an effective date prior to April 18, 2011, for the award of additional allowance of Dependency and Indemnity Compensation for K.F., the Veteran's adopted child, have not been met. 38 U.S.C. §§ 5110(a), 5111 (West 2014); 38 C.F.R. §§ 3.400(a), (q)(2), (r) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The appellant and her representative have not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Earlier Effective Date The appellant claims entitlement to an effective date earlier than April 18, 2011, for the award of an additional allowance of DIC benefits for K.F., the Veteran's adopted son. Except as otherwise provided, the effective date of an award of dependency and indemnity compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). Where new and material evidence, other than service department records, has been submitted to reopen a prior claim for dependency and indemnity compensation, the effective date will be either the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id. at § 3.400(q). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003). (explaining that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). It was further explained that the term "new claim" as it appeared in 38 C.F.R. § 3.400 (q) means a claim to reopen a previously and finally decided claim. In order for a claimant to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. 38 C.F.R. §§ 3.104 (b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, in this case, the issue of CUE in a specific prior VA decision has not been raised by the appellant or her representative, and, therefore, it is not before the Board at this time. Another exception to finality of a prior decision provides that when new and material evidence which leads to the allowance, other than service treatment records, is received within one year of notification of the prior disallowance, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400 (q)(1). However, this provision is not applicable to this case, as new and material evidence was not received within one year of a prior disallowance. In this case, a claim of entitlement for the award of additional allowance of Dependency and Indemnity Compensation for K.F was received in April 2005, three years following the Veteran's death. The claim was denied by a May 2005 rating decision. In June 2008, the Board denied the claim, finding that K.F. was not the Veteran's adopted child for VA purposes. This decision, denying recognition of K.F. as the Veteran's adopted child, was neither appealed to the United States Court of Appeals for Veterans Claims (Court) nor reconsidered by the Board, and thus became final as of the date stamped on the face of that decision. On April 18, 2011, a letter from the Office of the Attorney General regarding the adoption of K.F. was received by VA. This letter was accepted a claim to reopen, and also constituted new and material evidence, as to the issue of whether K.F. was legally adopted by the Veteran; as such, the claim was reopened. The claim was subsequently denied on the merits in a notification letter dated in April 2011. A (NOD was received in May 2011. A SOC was issued in April 2012; and the appellant perfected the appeal in April 2012. In a May 2014 decision, the Board recognized K.F. as the Veteran's adopted child for VA purposes. In a May 2014 decision letter, the RO notified the appellant that K.F. was added to her award of DIC as a dependent child, effective from April 18, 2011, the date of receipt of the claim to reopen based on new and material evidence. In June 2014, the appellant filed a timely NOD that contested the April 18, 2011 effective date, and this appeal ensued. The Board determines that an effective date earlier than April 18, 2011, for the award of an additional dependency allowance for K.F. is not warranted. As discussed above, the Board's June 2008 decision was unappealed and became final. Because the Board's June 2008 decision is final, the claim by which the Veteran's adopted son was recognized as a dependent child for an award of an additional allowance Dependency and Indemnity Compensation and which led to this appeal, is considered a claim to reopen a previously denied claim. The Court has held that, when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F. 3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) The evidence clearly shows that the final disallowance (the last disallowance that is determined to be a final decision by virtue of having not been appealed) is the Board's June 2008 decision. The record evidence also shows that the date of receipt of the claim to reopen, based on new and material evidence, was April 18, 2011, and that it is a claim reopened after final disallowance. Under the controlling law and regulations outlined above, an award of dependency and indemnity compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400 (q)(2), (r). Thus, the April 18, 2011 date of receipt of the claim to reopen, based on new and material evidence, which reopened the claim is the appropriate effective date; even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. Accordingly, the claim must be denied. See 38 C.F.R. § 3.400 (q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). The Board is sympathetic to the appellant in this instance and recognizes the appellant's belief that the effective date should be earlier than April 18, 2011. However, the governing legal authority is clear and specific, and VA is bound by it. As a result, the claim for an earlier effective date is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim of entitlement to an effective date earlier than April 18, 2011, for the award of an additional allowance of Dependency and Indemnity Compensation for the Veteran's adopted son, K.F., is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to April 18, 2011, for the award of an additional allowance of Dependency and Indemnity Compensation for K.F., the Veteran's adopted child, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs