Citation Nr: 20021660 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-41 587 DATE: March 26, 2020 ORDER An effective date prior to September 4, 2015, for the addition of a dependent child, J.V., to the Veteran’s compensation award is denied. FINDINGS OF FACT 1. The Veteran’s dependent child, J.V., was born in October 2012. 2. VA first received notification of the birth of J.V. in a Declaration of Status of Dependents (VA Form 21-686(c)), which was accompanied by photos of her birth certificate and Social Security card, received on September 4, 2015. CONCLUSION OF LAW The criteria for an effective date prior to September 4, 2015, for the addition of a dependent child, J.V., to the Veteran’s compensation award have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 2000 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an administrative decision issued in November 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to an effective date prior to September 4, 2015, for the addition of a dependent child, J.V., to the Veteran’s compensation award. The Veteran is seeking an effective date in October 2012, commensurate with the birth of his third child, J.V., for the addition of her as a dependent to his compensation award. He posits that such an effective date is warranted as he filed a dependency claim in January 2013, within the year of her birth, and relied upon his then-representative to submit the claim to VA on his behalf. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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(a). An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the 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). An additional amount of compensation may be payable for a spouse, child, and/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; 38 C.F.R. § 3.4(b)(2). Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, the effective date will be the latest of the following dates: (1) date of claim; (2) date the 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 the service member's award. 38 C.F.R. § 3.401(b). The “date of claim” for additional compensation for dependents is the date of the veteran's marriage or birth/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. Regarding “establishing 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 § 3.204.” 38 C.F.R. § 3.213 (a). 38 C.F.R. § 3.204 indicates that: 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. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216). 38 C.F.R. § 3.204. The Board also notes that the United States Court of Appeals for Veterans Claims has found that, while acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). In the instant case, the first correspondence of record reflecting notification of the birth of the Veteran’s third child, J.V., to VA was received on September 4, 2015, via Declaration of Status of Dependents (VA Form 21-686(c)), which was accompanied by photos of her birth certificate and Social Security card. Accordingly, in a November 2015 administrative decision, the RO added J.V. as a dependent child to the Veteran’s compensation award, effective October 1, 2015, which was later corrected to September 4, 2015. After appealing this decision, the Veteran submitted a January 2013 facsimile transmission from the local county chapter of the Veteran Service Organization (VSO) that represented the Veteran at this time. This facsimile report reflects that the local county VSO office relayed the Veteran’s January 2013 dependency claim to the VSO office within the RO, and the VSO RO office stamped this facsimile transmission as received in January 2013. For the sake of convenience, many VSO’s have offices located in VA ROs; nevertheless, they are separate entities, operating outside of VA and advocating for veterans. However, there is no indication that the VSO office located in the RO in turn filed the dependency claim with VA on the Veteran’s behalf. Thus, the first notification of the birth of J.V. was received by VA on September 4, 2015. While the Board is very sympathetic to the Veteran’s argument, as it appears he relied upon his former VSO to his detriment, the law is clear and VA cannot be held accountable for payment of benefits until VA has been notified of a veteran’s entitlement to such benefits. Given that the record fails to reflect that VA was apprised that the Veteran wished to add J.V. as a dependent for VA compensation purposes until September 4, 2015, there is no legal basis for awarding an earlier effective date. As such, the Veteran’s claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.