Citation Nr: 21070357 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-26 778 DATE: November 23, 2021 ORDER Entitlement to an effective date prior to September 5, 2017 for the addition of S. as a dependent child to the Veteran's award is denied. FINDINGS OF FACT 1. Since May 16, 2005, the Veteran has been in receipt of at least a combined 30 percent rating for his service-connected disabilities. 2. In October 2007, the Department of Veterans Affairs (VA) added S. as dependent child to the Veteran's award, effective May 16, 2005. 3. Thereafter, in February 2009, the Veteran requested that S. be removed from his award as he recently found out that she was not his biological child. In May 2009, VA issued a decision letter notifying the Veteran that S. had been removed from his award as a dependent, effective March 1, 2009. 4. Subsequently, on September 5, 2017, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents, requesting that S. be added back to his award. The Veteran explained that S.' biological mother misled him concerning S.' parentage and that recent developments confirmed that he was indeed S.' biological father. 5. On September 5, 2017, the Veteran submitted an affidavit of parentage completed in August 2017 for the North Carolina Department of Health and Human Services. In this affidavit, both the Veteran and M.B.S.' motheraffirmed that the Veteran was the father of S., who was born on September [REDACTED], 2002 in Thomasville, North Carolina. 6. September 5, 2017 was the earliest date VA was made aware of Veteran's confirmed relationship to the child S. following her removal from his award at his request in May 2009. CONCLUSION OF LAW The criteria for an effective date prior to September 5, 2017 for the addition of S. as a dependent child to the Veteran's award are not met. 38 U.S.C. §§ 1115, 5107; 38 C.F.R. §§ 3.4, 3.102, 3.204, 3.209, 3.210, 3.400, 3.401; Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2002 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2018 decision of a VA Regional Office (RO). Jurisdiction of the Veteran's claims file currently resides with the San Diego, California RO. Earlier Effective Date The law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled. 38 U.S.C. §§ 1114(c), 1115, 1134, 1135. As indicated above in the Findings of Fact section, the Veteran has been in receipt of at least a 30 percent rating for his service-connected disabilities since May 16, 2005. Accordingly, the Board finds that the Veteran has been rated appropriately to receive additional compensation for dependents for the time period prior to September 5, 2017. Moving beyond this threshold issue, the Board next notes that awards of additional compensation for dependents are effective 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 one year of notification of such rating; or (4) date of commencement of Veteran'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 VA's request. 38 C.F.R. § 3.401(b)(1). In this case, VA was first made aware of S.' existence in June 2007 when the Veteran submitted a VA Form 21-686c. On this form, the Veteran indicated that S. was his biological child. He then provided her date of birth and her Social Security number. In October 2007, VA added S. to the Veteran's award as his dependent, effective May 16, 2005the effective date of a then-recent 100 percent rating for posttraumatic stress disorder (PTSD). See 38 C.F.R. § 3.401(b)(3). However, in February 2009, the Veteran contacted VA and requested that S. be removed as a dependent as he recently was found out that she was not his biological child. In March 2009, the Veteran spoke with a VA employee over the telephone and stated that recent DNA testing results proved that S. was not his daughter. The essence of this conversation was documented in a VA Form 21-0820. Pursuant to the Veteran's request, VA removed S. from his award in May 2009. Thereafter, the Veteran filed a new VA Form 21-686c with VA on September 5, 2017. As mentioned previously in the Findings of Fact section, the Veteran explained that he recently was informed that S. was in fact his biological daughter in connection with to legal proceedings initiated in the state of North Carolina. On this same date, the Veteran also submitted a copy of an August 2017 affidavit of parentage completed for the North Carolina Department of Health and Human Services. In this affidavit, both the Veteran and M.B.S.' motheraffirmed that the Veteran was S.' father. In light of the evidence of record, the Board concludes that an effective date prior to September 5, 2017 for the addition of S. to the Veteran's award as a dependent child is not warranted. Specifically, although S. was acknowledged as a dependent from May 2005 to March 2009, sufficient proof of S' relationship to the Veteran as his biological child was not provided to VA until September 5, 2017. See 38 C.F.R. § 3.210(b). Accordingly, the appropriate effective date for the addition of S. as a dependent to the Veteran's award was the date of receipt of claimSeptember 5, 2017. See 38 C.F.R. § 3.401(b). Thus, the Veteran's claim is denied. While the Board is sympathetic to the Veteran's position that (1) S. has always been his biological child, (2) he has provided for S. since her birth, and (3) his 2009 request to remove S. was based upon deceit, controlling regulations prevent the assignment of an earlier effective date as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Veteran's claim must be denied. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.