Citation Nr: 21067007 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-12 484 DATE: November 3, 2021 ORDER Entitlement to an effective earlier of December 18, 2012 for the establishment of permanent incapacity for self-support for [REDACTED] is granted. FINDINGS OF FACT 1. In a May 2016 rating decision, service connection for interstitial lung disease was granted on a substitution basis and 100 percent rating with an effective date of December 18, 2012 was assigned. 2. A June 6, 2016 notice letter informed the appellant that the Veteran's combined rating was 30 percent or more disabling, that she may be eligible for additional benefits based on dependency and that a Declaration of Status of Dependents (VA Form 21-686c) should be completed and returned as a claim for dependency. 3. VA received a completed VA Form 21-686c on May 9, 2017, within one year of the June 6, 2016 notice letter and May 2016 rating decision, that identified [REDACTED] as a seriously disabled child. 4. [REDACTED] is the child of the Veteran and was not capable of self-support by reason of mental or physical defect prior to reaching the age of 18, which is prior to the receipt of the December 18, 2012 supplemental claim. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date earlier of December 18, 2012 for the establishment of permanent incapacity for self-support for [REDACTED] have been met. 38 U.S.C. § 5110(d); 38 C.F.R. §§ 3.5, 3.400, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1954 to July 1958, and in the United States Army from November 1990 to May 1991, with additional service in the Reserves. Regrettably, the Veteran died in February 2015. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the Milwaukee Pension Center RO. Earlier Effective Date Permanent Incapacity for [REDACTED] The appellant contends that she is entitled to an earlier effective date for establishment of permanent incapacity for self-support for her adult adoptive daughter, [REDACTED] Specifically, the appellant and her attorney assert that D. J. became permanently incapable of self-support prior to July [REDACTED], 2010, her 18th birthday due to her diagnosis of bipolar disorder with anxiety and depression. See Notice of Disagreement, September 17, 2019. Therefore, they assert that the benefits were granted and assigned an effective date of April 19, 2018, the date of VA's receipt of claim, which is erroneous. Id. Moreover, the appellant's attorney asserts that the Veteran filed a claim for dependency and indemnity compensation (DIC) benefits on September 11, 2015, which identified [REDACTED] as a seriously disabled child, and Social Security Administration (SSA) records were submitted in March 2016 showing [REDACTED]'s disability prior to her 18th birthday and indicating that the appellant was her legal guarding. See Third Party Correspondence, September 20, 2019. Furthermore, the attorney asserts that the there are no statutory or legal requirements imposing that a separate application must be submitted for a "seriously disabled" child over the age of 18. Id. Effective dates for the award of VA benefits are generally governed by 38 U.S.C. § 5110, which states that, 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, DIC, 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). Further, the effective date of an award of death compensation or DIC for which the application is received within one year from the date of death shall be the first day of the month in which the death occurred; otherwise, the date of receipt of the claim. 38 U.S.C. § 5110(d)(1); 38 C.F.R. § 3.400(c)(2). The provisions of 38 C.F.R. § 3.401(b) address awards of additional compensation for dependents. This section provides that the effective date of an award will be the latest of: (1) the date of claim, (2) the date dependency arises, (3) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action, or (4) the date of commencement of the veteran's award. "Date of claim" means, in order of applicability: (1) the date of a veteran's marriage or the birth of his child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise, (2) the date notice is received of the dependent's existence, if evidence is received within one year of VA's request. 38 C.F.R. § 3.401(b). Here, the appellant first filed a claim for entitlement to establishment of permanent incapacity for self-support for her adult adoptive daughter, [REDACTED] that was received by VA on April 19, 2018. That claim was granted by the RO in a September 2018 rating decision, and assigned an effective date of April 19, 2018, the date the claim was received by VA. This timely appeal followed. These basic facts are not in dispute. The Board notes in a September 2015 VA Form 21-534, Application for DIC, the appellant listed two adopted children, Da. L. J. and [REDACTED] The appellant indicated that [REDACTED] was seriously disabled. See VA Form 21-534, September 14, 2015. Additionally, the appellant indicated she did not live with [REDACTED], and provided monthly support that was equivalent to the SSA benefits received on behalf of [REDACTED] Id. Additionally, the Board notes that SSA records were submitted to the VA claims file in March 2016 that show [REDACTED] was in receipt of SSA benefits as a result of mental impairments; the appellant was in receipt of those benefit payments. Under the provisions of 38 C.F.R. § 3.401(b), the effective date for the award of dependency benefits is the latest of the following: (1) the date of claim, (2) the date dependency arises, (3) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action, or (4) the date of commencement of the veteran's award. Here, the date the effective date of the qualifying disability rating and the date of commencement of the Veteran's award is December 18, 2012, the date service connection for interstitial lung disease was granted on a substitution basis. A June 2016 notice letter that accompanied the May 2016 rating decision that awarded service connection for interstitial lung disease noted that the Veteran's combined evaluation is 30 percent or more disabling, that there may be eligibility for additional benefits based on dependency and that a Declaration of Status of Dependents (VA Form 21-686c) should be completed to submit a claim for dependents. A May 2017 VA Form 21-686c listed [REDACTED] as a child who was seriously disabled. Such was received within one year of the June 2016 notice letter that accompanied the May 2016 rating decision. The record establishes that [REDACTED] was helpless prior to her 18th birthday. The latest of theses dates is December 18, 2012. Therefore, an effective date of December 18, 2012 is warranted for the establishment of permanent incapacity for self-support for [REDACTED] 38 C.F.R. § 3.401(b). (Continued on the next page) Accordingly, the Board finds that an earlier effective date of December 18, 2012 for the establishment of permanent incapacity for self-support for [REDACTED] is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.