Citation Nr: 21023706 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-00 012 DATE: April 21, 2021 ORDER An effective date prior to December 14, 2015, for the addition of the Veteran’s child, K., as his dependent, to his award of Department of Veterans Affairs (VA) disability compensation is denied. FINDINGS OF FACT 1. In June 2012, a Massachusetts State Court entered an Adoption Decree with Name Change granting the Veteran’s petition to adopt K. 2. In April 2013, the Veteran was in receipt of at least a 30 percent combined disability rating. 3. In a March 2016 rating decision, the Veteran was awarded an increased rating for his service-connected posttraumatic stress disorder (PTSD) and service connection for a low back disability, both effective December 14, 2015. 4. In October 2016, within one year of the March 2016 rating decision, the Veteran first submitted a claim for additional VA disability compensation benefits based on his adoption of K. CONCLUSION OF LAW The criteria for an effective date prior to December 14, 2015, for the addition of the Veteran’s daughter, K., as his dependent, to his award of VA disability compensation have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.4, 3.57, 3.210, 3.400, 3.401 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from February 2001 to April 2001, from January 2004 to January 2005, from March 2005 to September 2005, and from October 2005 to January 2010. He also had additional periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a Board Central Office hearing in December 2019. He did not appear for this hearing and did not provide an explanation or ask that it be rescheduled. Therefore, the request for a Board hearing is deemed to have been withdrawn. In June 2020, the Board remanded this matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to an effective date prior to December 14, 2015 for the addition of the Veteran’s daughter, K., as his dependent to his award of VA disability compensation. Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). In this case, the record indicates that the Veteran has been in receipt of a disability rating in excess of 30 percent disability since April 2013. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a 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). For VA purposes, the term “child” is defined, in pertinent part, as an unmarried person who is a child legally adopted before the age of 18 years. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57. Furthermore, “adopted child” means (i) a child adopted pursuant to a final decree of adoption, (ii) a child adopted pursuant to an unrescinded interlocutory decree of adoption while in the custody of the adopting parent(s) during the interlocutory period, and (iii) a child who has been placed for adoption under an agreement entered into by the adopting parent(s) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent(s) during the period of placement for adoption under such agreement. 38 U.S.C. § 101(4)(A); 38 C.F.R. § 3.57(c). Specific evidence requirements apply in order to establish a child’s relationship to a veteran. With regard to an adopted child, evidence of a relationship will include a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary. 38 U.S.C. § 501(a); 38 C.F.R. § 3.210(c). In jurisdictions where petition must be made to the court for release of adoption documents or information, or where release of such documents or information is prohibited, a copy of the child’s revised birth certificate may be accepted to establish the fact of adoption of a child adopted into the veteran’s family. 38 C.F.R. § 3.210(c)(1). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See also 38 C.F.R. §§ 3.1(p), 3.155(a) (2018). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. As this claim was not pending prior to March 24, 2015, the Board will apply the regulations effective March 24, 2015 regarding defining a claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The “date of claim” for additional compensation for a dependent child is the date of the Veteran’s 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. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. 38 U.S.C. § 5102(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). Here, the Veteran contends that he is entitled to an effective date prior to December 14, 2015 for additional dependency benefits. He seeks an effective date of April 2013, the date he became entitled to additional compensation for dependents, for the addition of K. as his dependent to his award of VA disability compensation. As an initial matter, the record reflects that the Veteran adopted K. in June 2012. See June 2012 Adoption Decree with Name Change from a Massachusetts state court. Therefore, he adopted K. prior to the date he became entitled to additional compensation for dependents. In a March 2016 rating decision, the Veteran was awarded an increased rating for PTSD and service connection for a low back disability, both effective December 14, 2015. In October 2016, the Veteran submitted VA Form 21-686c, Declaration of Status of Dependents, asking that K. be added to his award of VA disability compensation as his dependent child. He also submitted copies of K.’s social security card, passport, and amended birth certificate, as well as the June 2012 Massachusetts state court Adoption Decree. In a January 2017 decision, the RO recognized K. as the Veteran’s dependent child and added her to the Veteran’s award of VA disability compensation, effective December 14, 2015. This effective date was assigned based on the Veteran’s filing the October 2016 claim for dependency benefits within one year of the March 2016 rating decision; therefore, the effective date of the dependency claim dated back to the effective date of the disability claims granted in the March 2016 rating decision. In February 2017, the Veteran submitted a notice of disagreement with the January 2017 decision. The Veteran stated that he submitted paperwork regarding recognition of K. as his adopted child on the same day she was entered into the system at the Bedford VA Medical Center (VAMC). He stated that he got a printout from VA to prove she was in the system on May 1, 2011. The Veteran submitted a copy of a computer printout indicating that K. was added as a sixth dependent on May 1, 2011. In July 2020, VA added to the claims file a document from the Veteran’s records at the Bedford VAMC. This document appears to be a computer printout of patient demographic data regarding the Veteran, but does not show any dependents. In August 2020, an April 2012 VA Form 10-10EZ, Application for Health Benefits, was added to the record. This undated form only lists one of the Veteran’s children, I., as a dependent. A different, undated, VA Form 10-10EZ was also added to the record, which listed K. as the Veteran’s child on an extra, attached page. The Veteran stated that K. was a foster child in the process of adoption, and that adoption would be finalized in February 2012. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than December 14, 2015, for the addition of the Veteran’s child, K., as his dependent to his award of VA disability compensation. There is nothing in the record prior to that date that can be construed as a claim, pursuant to 38 C.F.R. § 3.1(p), for additional dependency benefits based on the Veteran’s adoption of K. As such, the RO has already assigned the earliest possible effective date for the addition of K. as the Veteran’s dependent to his award of VA disability compensation. The Board recognizes the Veteran’s statements that he informed VA in May 2011 that K. was his dependent child., and that VA had K. listed as his dependent. To the extent that the Veteran is alleging that Veterans Health Administration (VHA) was aware of the Veteran’s adoption of K., such notice to VHA and claim for health benefits cannot be considered a claim for the purposes of entitlement to additional disability compensation for a dependent child, as notice to VHA for healthcare purposes does not identify an intent to seek additional compensation benefits based on the existence a dependent child. See 38 C.F.R. § 3.155(a). For these reasons, there is no legal basis upon which to grant an earlier effective date. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to those dependent benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that “§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority”). For these reasons, the Board concludes that an effective date earlier than December 14, 2015 for the addition of K. as the Veteran’s dependent child to his award of VA disability compensation, is not warranted. Therefore, the appeal is denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.