Citation Nr: A19002055 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190510-18030 DATE: October 17, 2019 ORDER Entitlement to an effective date of August 1, 2018, for the recognition of A.R. as the Veteran’s daughter for the purposes of additional dependency compensation is granted. FINDINGS OF FACT 1. A.R. was born in November 2012 and is the Veteran’s biological daughter 2. In a May 2018 rating decision, the evaluations of the Veteran’s psychiatric and back-related disabilities were reduced and he was assigned a combined disability evaluation of 60 percent effective August 1, 2018. 3. The Veteran submitted a written claim for additional dependency benefits due to recognition of A.R. as his minor child in January 2019. CONCLUSION OF LAW The criteria for an effective date of August 1, 2018, for recognition of A.R. as the Veteran’s minor child for the purposes of additional dependency compensation have been met. 38 U.S.C. §§ 101, 1115, 5110(f); 38 C.F.R. §§ 3.57, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2009 to February 2013. A.R. is his minor child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2019 decision of a Regional Office of the Department of Veterans Affairs (VA). The Veteran seeks an earlier effective date for recognition of his daughter for the purposes of additional dependency compensation. Any veteran who is entitled to disability compensation, and whose disability is rated not less than 30 percent, is entitled to additional compensation for dependents, including for a biological minor child. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). When determining the effective date for an award of additional compensation for dependents, the general rule is that the effective date will be the last of the following dates provided that sufficient evidence is received: (1) the date of claim; (2) the date the dependency arises; (3) the effective date of the qualifying disability rating; or (4) the date of commencement of the veteran’s award. 38 C.F.R. § 3.401(b). The general rule is that the “date of claim” for additional compensation for a dependent minor child is the date of the birth or adoption, 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 a request from VA. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. 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. Regardless of the regulation governing effective dates of awards, payment of monetary benefits based on compensation begins the first day of the month following the effective date. 38 C.F.R. § 3.31. The Veteran has currently been assigned an effective date of January 23, 2019, for recognition of A.R. as his minor child. This date coincides with the first date that VA received written notification of her existence by way of the Veteran’s submission of VA Form 21-686c (Declaration of Status of Dependents). In a May 2019 brief, the Veteran’s representative argued that this effective date was incorrect, citing the language set forth at 38 U.S.C. § 5110(f). By way of background, it is useful to note that the Veteran has been in possession of at least a 30 percent disability rating for the entire appeal period and was granted that rating in a July 2014 rating decision. In the notification letter informing him of his award, he was notified that additional dependency compensation was potentially available if he provided the requisite information regarding his dependents. That decision can clearly be considered a “qualifying disability rating” action pursuant to 38 C.F.R. § 3.401(b)(3). As such, had evidence of A.R.’s birth and relationship to the Veteran been submitted within a year of the notification of that decision, the effective date of that award would have been the proper date to establish A.R.’s dependency. However, as no such information was forthcoming in the year that followed that decision, the Board is precluded from assigning such an early effective date. The Veteran’s representative now argues that the May 2018 rating decision that effectuated a proposed reduction in the evaluation of the Veteran’s psychiatric and back disabilities should also be considered a qualifying rating action pursuant to 38 C.F.R. § 3.401(b)(3). He contends that the statutory basis for that regulation, set forth at 38 U.S.C. § 5110(f), specifically permits an effective date for dependency benefits to coincide with the effective date of a rating action that establishes a disability rating in the percentage set forth at 38 U.S.C. § 1115. Although the rating action at issue here reduced, rather than increased the Veteran’s overall disability rating, the Veteran’s representative argues that such a distinction is meaningless under the law because the relevant rating decision assigned a disability rating sufficient to permit additional dependency benefits pursuant to 38 U.S.C. § 1115. The Board agrees. The United States Court of Appeals for Veterans Claims (Court) has issued a decision that appears to directly address the facts here and the arguments of the Veteran’s representative. In Sharp v. Shinseki, 23 Vet. App. 267 (2009), a strikingly similar fact pattern emerged in which a surviving spouse sought accrued dependency benefits effective the date of a grant of a total disability rating based on individual unemployability. There, like here, the Veteran had previously been assigned at least a 30 percent disability rating. Similarly, like here, the appellant contended that the statutory and regulatory language regarding effective dates for dependency benefits did not mandate that notice be given within a year of the first rating action that awarded a disability rating that met that threshold. Instead, the appellant contended that any disability rating action that assigned an evaluation that met or exceeded the 30 percent threshold would in effect reset the clock and allow an appellant an additional year from the date of notice of that rating action to submit evidence of dependency. If such evidence was provided, the appellant argued that the effective date of the additional dependency compensation should match the effective date of the award of the at least 30 percent combined rating that was set in the rating action in question. In Sharp, the Court noted that the language of the statute was ambiguous with respect to the question of whether Congress intended to restrict 38 U.S.C. § 5110(f) to apply to only the first rating decision establishing a disability rating that met the statutory criteria for entitlement to additional dependency benefits. The Court explained that the language could also be read to mean that any rating decision that established a disability rating that met the statutory threshold for additional dependency benefits could serve as the basis for an effective date for those benefits. In its attempt to resolve this apparent ambiguity, the Court found that no deference was owed to the implementing regulation set forth at 38 C.F.R. § 3.401 because it merely mirrored the language of the authorizing statute. Considering the holding in Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994), the Court found that interpretative doubt should be resolved in the appellant’s favor and held that the effective date for additional compensation for dependents shall be the same as the date of 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. Sharp, 23 Vet. App. at 276. The Board finds that the holding in Sharp is instructive when applied to the facts of the Veteran’s appeal. As was the case in Sharp, the Veteran submitted sufficient evidence of A.R.’s dependency within a year of being notified of a rating decision establishing a disability rating in excess of 30 percent. As such, the effective date for recognition of A.R. as his minor child must match the effective date of the May 2018 rating decision. Accordingly, the criteria for an effective date of August 1, 2018, for recognition of A.R. as the Veteran’s minor daughter for the purposes of additional dependency compensation have been met, and to this extent, the appeal is granted. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.