Citation Nr: 19123746 Decision Date: 03/29/19 Archive Date: 03/29/19 DOCKET NO. 11-30 576 DATE: March 29, 2019 ORDER An effective date of October 1, 2004, but no earlier, for the addition of dependent child, C.M., to the Veteran’s award of VA compensation benefits is granted, subject to the provisions governing the award of monetary benefits. FINDING OF FACT The Veteran’s credible lay statements and testimony establishes that all required information/documentation regarding the addition of dependent child, C.M., to the Veteran’s award of VA compensation benefits was received within one year of the child’s birth on September [Redacted], 2004, despite the lack of corroborating documentary evidence in the electronic claims file. CONCLUSION OF LAW The criteria for an effective date of October 1, 2004, for the addition of dependent child, C.M., to the Veteran’s award of VA compensation benefits have been met. 38 U.S.C. §§ 1115, 5107, 5110; 38 C.F.R. §§ 3.31, 3.204, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1993 to January 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 administrative decision from a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided sworn testimony before the undersigned Veterans Law Judge at a November 2017 videoconference hearing. A copy of the hearing transcript has been associated with the electronic claims file. Effective Date for the Addition of the Veteran’s Son, C.M., as a Dependent An additional amount of compensation may be payable for a spouse, child, or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2). The Veteran has been in receipt of 60 percent combined disability rating for service-connected disabilities since February 17, 2000. The term “child” means, in relevant part, an unmarried person under 18 years, or under age 23 if attending an educational institution approved by VA. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. The Veteran’s child, C.M., was born on September [Redacted], 2004 and remains under the age of 18 at the time of this decision. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An award of additional compensation for dependents based on the establishment of a disability rating in the percentage evaluation specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f). The implementing regulation provides that the effective date for the payment of additional compensation for dependents will be the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; or (4) date of commencement of veteran’s award. 38 C.F.R. § 3.401(b). The term “date of claim” means the following, listed in their order of applicability: (i) date of veteran’s marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within one year of the event; otherwise (ii) date notice is received of the dependent’s existence, if evidence is received within one year of VA’s request. In order to establish entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of 38 C.F.R. § 3.204. See 38 C.F.R. § 3.213(a). Under 38 C.F.R. § 3.204, VA will accept, for the purpose 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, where the claimant’s dependent child does not reside with the claimant, the name and address of the person who has custody of the child. See McColley v. West, 13 Vet. App. 553, 557 (2000). In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. Id. Regardless of VA regulations concerning the effective dates of awards, the payment of monetary benefits based on original, reopened, or increased awards may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. See 38 C.F.R. § 3.31. In a January 2010 administrative decision, the RO granted an effective date of November 1, 2007 for the addition of the Veteran’s dependent child, C.M., as this was the first day of the month following the date VA was notified of his birth on VA form 21-0538, Status of Dependents Questionnaire, received by VA on October 24, 2007. In July 2010, the Veteran filed a timely notice of disagreement challenging the effective date of the addition of her son, C.M., to her award of VA compensation benefits. As explained in the notice of disagreement and clarified at the November 2017 videoconference hearing, the Veteran contends that she submitted a copy of C.M.’s birth certificate and the required paperwork in person to a VA representative from the Jackson, Mississippi RO named, P.A., in November 2004 on the campus of Alcorn State University. Although the Veteran has not directly stated that she provided C.M.’s social security number, in addition to his birth certificate, to P.A. in November 2004, this information would have been readily available; and assuming VA did timely receive C.M.’s birth certificate, it should have provided notice that further information was needed to properly process the Veteran’s claim. Thus, the absence of lay evidence directly establishing that C.M.’s social security was also provided to P.A. in November 2004 is not, on its face, fatal to her claim. 38 C.F.R. § 3.109(a)(1). The Veteran did not hear anything in regard to her November 2004 application; and in 2007 contacted VA for additional information. It was at this point that she submitted VA form 21-0538 notifying VA of the September [Redacted], 2004 birth of C.M. The RO did not respond or send the Veteran a copy of VA form 21-686c, Declaration of Status of Dependents, for completion as required by 38 C.F.R. 3.109(a)(1). Again, the Veteran heard nothing from VA until December 2009 when she contacted the RO in Muskogee, Oklahoma regarding her claim to establish C.M. as a dependent for VA compensation purposes. In January 2010, the Veteran completed VA form 21-686c, resulting in the January 2010 administrative decision from the RO. In the August 2011 Statement of the Case, the RO indicated that it assigned the effective date of November 1, 2007 (instead of February 1, 2010 – the first day of the month following VA’s receipt of VA form 21-686c) for the addition of C.M. as a dependent due to its failure to properly develop the claim when the RO received the VA form 21-0538 in October 2007, the date the RO alleges it was first notified of C.M.’s birth. In the August 2011 Statement of the Case, the RO acknowledged the Veteran’s contention that she submitted the evidence required by 38 C.F.R. § 3.204 to VA employee, P.A., within one year of C.M.’s birth, but discounted this lay evidence due to the lack of corroborating evidence in the Veteran’s electronic claims file. In October 2011, the Veteran filed a timely VA form 9, Substantive Appeal, giving rise to the Board’s jurisdiction over this claim. Having fully reviewed the electronic claims file, the Board finds that the proper effective date for the addition of the Veteran’s dependent child, C.M, to her award of VA compensation benefits is October 1, 2004. While the electronic claims file lacks any documentation from the one-year period following C.M.’s birth date of September [Redacted], 2004, the Board finds the Veteran’s lay statements and testimony indicating she submitted the appropriate information/documentation for an award of dependency to a VA counselor in November 2004 to be highly credible, and worthy of significant evidentiary value. In support of this conclusion, the Board notes that the Veteran’s lay statements and testimony have remained remarkably consistent throughout the duration of this appeal. Her testimony at the November 2017 videoconference regarding her 2007 and 2009 contact with VA matches the historical information in her electronic claims file. Further, the fact the Veteran was able to identify, by name, the precise VA employee who she submitted C.M.’s birth certificate and paperwork to in November 2004 gives significant weight to the credibility of her assertions. Aside from the absence of the claimed November 2004 documents, the Board’s review of the electronic claims file reveals other irregularities suggesting the record may not be complete. For instance, when VA received the Veteran’s completed VA form 21-0583 on October 24, 2007, it was accompanied by a notice letter sent to the Veteran from VA and dated October 1, 2007. Excluding this post hoc evidence received on October 24, 2007, the electronic claims file contains no contemporaneous evidence indicating that the RO sent the Veteran any correspondence on October 1, 2007. In fact, there is a dearth of evidence in the electronic claims file between March 20, 2004 and the receipt of the Veteran’s completed VA from 21-0538 on October 24, 2007. Thus, the question remains, why did the RO send the Veteran correspondence on October 1, 2007 regarding the status of her dependents? In the July 2010 notice of disagreement and her November 2017 videoconference testimony, the Veteran stated she contacted VA in 2007 to question why her dependent child, C.M., had not been added to her award of VA compensation benefits. There is no “Report of Contact” in the Veteran’s electronic claims file documenting the Veteran’s conversation with VA personnel in 2007; but this conversation would explain why the RO sent the Veteran correspondence regarding the status of her dependents in October 2007. This logical inference further supports the credibility of the Veteran’s lay statements and testimony in this appeal. In rendering a decision on appeal, the Board is tasked with assessing the credibility, competency, and probative weight assigned to the evidence of record, including any proffered lay statements. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As supported by the analysis above, the Board finds that the Veteran’s credible and competent lay statements and testimony establish that she submitted the required information/documentation regarding the addition of dependent child, C.M., to her award of VA compensation benefits in November 2004; and that such statements outweigh the lack of corroborating documentary evidence in the electronic claims file. The Board acknowledges the Veteran’s request seeking an effective date of September [Redacted], 2004 for the addition of dependent child, C.M., to her award of VA compensation benefits. However, as the Board has determined that the required documents/information were received by VA within one year of the birth of C.M., the proper effective date for the addition of dependent child, C.M., is the first day of the calendar month following the month in which entitlement arose. See 38 C.F.R. §§ 3.31, 3.401(b)(1)(i). In this case, entitlement arose on C.M.’s birth date of September [Redacted], 2004, and thus, the first day of the following calendar month is October 1, 2004. This is the earliest effective date available under the law for the addition of dependent child, C.M., to the Veteran’s award of VA compensation benefits. Accordingly, an effective date of October 1, 2004, but no earlier, for the addition of C.M. as a dependent child for VA compensation purposes is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel