Citation Nr: 21042729 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-20 086 DATE: July 13, 2021 ORDER Entitlement to a retroactive payment higher than the amount issued with the April 2017 rating decision, and listed in the May 31, 2017 Award Print, is denied. FINDINGS OF FACT 1. The evidence is against finding a higher amount of retroactive payment for the Veteran's combined disability rating increase from 30 to 100 percent for the period from April 13, 1968, to April 25, 2008. 2. Within a year of notification of the May 31, 2017, retroactive payment action, the Department of Veterans Affairs (VA) was notified of the existence of only two dependents for additional compensation, the Veteran's spouse J K and child D K. CONCLUSION OF LAW The criteria for entitlement to a retroactive payment higher than the amount issued with April 2017 rating decision, and list in the May 31, 2017 Award Print, have not been met. 38 U.S.C. §§ 1114, 1115, 5110; 38 C.F.R. §§ 3.4, 3.21, 3.400, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 April 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2017 rating decision. See January 2018 Notice of Disagreement (NOD); February 2018 Statement of the Case (SOC); March 2018 Substantive Appeal (VA Form 9). The Veteran testified before the undersigned Veterans Law Judge in an April 2021 hearing. See April 2021 Hearing Transcript. The Veteran's spouse, J K, was also present at the hearing. See id. Entitlement to a retroactive payment higher than the amount issued with the April 2017 rating decision and listed in the May 31, 2017 Award Print. The Veteran asserts that he did not receive the correct payment with his retroactive award listed in the May 31, 2017 notification letter. See January 2018 NOD; March 2018 VA Form 9; April 2018 Appellate Brief. The Veteran testified that his total retroactive payment should be $998,467. April 2021 Hearing Transcript. The Veteran testified that this is based, at least in part, on a woman who told him that the payrate for a 100 percent disabled Veteran is $2,300 per month. Id. The basic rates for monthly disability compensation are found at 38 U.S.C. § 1114 and the basic rates for additional compensation for dependents are found at 38 U.S.C. § 1115. Congress updates these rates periodically for cost of living adjustments which are tied to increases in Social Security Administration (SSA) benefits. 38 U.S.C. § 1104. Pursuant to VA regulation, the rates of compensation are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 and are to be given the same force and effect as if published in Title 38 of the Code of Federal Regulations. 38 C.F.R. § 3.21. Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.4(b)(2), 3.401(b). VA will pay a disabled Veteran the corresponding amount depending on the level of disability and details of his additional dependents. There is no discretion authorized to the Secretary as to the amount to be paid. After careful and thorough review of the evidence, the Board finds that a retroactive payment higher than the amount issued with the April 2017 rating decision, and listed in the May 31, 2017 notification letter, is not warranted. As an initial matter, the Board notes that the Veteran is service-connected for two scars, but his service-connected posttraumatic stress disorder (PTSD) is his only compensable rating. Part of the reason for this appeal appears to be due to the lengthy period at issue for the retroactive payment, the number of rating decisions that affected that period, and confusion about the applicable disability compensation rates. By way of history, the Veteran was granted entitlement to service connection for posttraumatic stress disorder (PTSD) in an April 1990 rating decision and awarded a 30 percent rating, effective April 20, 1989. The Veteran subsequently filed for an increased rating and granted a 100 percent rating for his PTSD, effective April 25, 2008. See July 2008 Rating Decision. He was later found entitled to an earlier effective date of April 13, 1968, for his 30 percent rating. See November 2016 Rating Decision. Therefore, prior to the April 2017 rating decision, the Veteran's PTSD was rated as 30 percent disabling from April 13, 1968, and 100 percent disabling from April 25, 2008. The April 2017 rating decision then found clear and unmistakable error in the prior adjudications and granted the Veteran's PTSD an earlier effective date of April 13, 1968, for his 100 percent rating. In other words, the Veteran's PTSD rating was increased from 30 to 100 percent for the period from April 13, 1968, to April 25, 2008. The Veteran's retroactive payment due is, thus, the difference between the 30 percent rating he had already been awarded and paid, and his new amount for a 100 percent rating. Based on the December 2016 Award Print, VA had issued the following payments for the Veteran's 30 percent rating for PTSD since May 1, 1968, and additional compensation for a dependent spouse starting from October 1, 1978. Payment Period Rate of Compensation (per month) Total Paid for Period 5/1/1968 12/31/1968 $60.00 $480.00 1/1/1969 6/30/1970 $65.00 $1,170.00 7/1/1970 4/23/1971 $70.00 $683.67 4/24/1971 7/31/1972 $70.00 $1,066.33 8/1/1972 4/30/1974 $77.00 $1,617.00 5/1/1974 7/31/1975 $89.00 $1,335.00 8/1/1975 12/16/1975 $98.00 $444.27 12/17/1975 9/30/1976 $98.00 $927.73 10/1/1976 9/30/1977 $106.00 $1,272.00 10/1/1977 9/30/1978 $113.00 $1,356.00 10/1/1978 9/30/1979 $136.00 $1,632.00 10/1/1979 9/30/1980 $149.00 $1,788.00 10/1/1980 9/30/1981 $169.00 $2,028.00 10/1/1981 9/30/1982 $183.00 $2,196.00 10/1/1982 3/31/1984 $195.00 $3,510.00 4/1/1984 11/30/1984 $202.00 $1,616.00 12/1/1984 11/30/1985 $208.00 $2,496.00 12/1/1985 11/30/1986 $215.00 $2,580.00 12/1/1986 11/30/1987 $218.00 $2,616.00 12/1/1987 11/30/1988 $227.00 $2,724.00 12/1/1988 11/30/1989 $236.00 $2,832.00 12/1/1989 12/31/1990 $247.00 $3,211.00 1/1/1991 11/30/1991 $259.00 $2,849.00 12/1/1991 2/29/1992 $270.00 $810.00 3/1/1992 3/31/1992 $282.00 $282.00 4/1/1992 11/30/1992 $270.00 $2,160.00 12/1/1992 11/30/1993 $277.00 $3,324.00 12/1/1993 12/16/1993 $284.00 $151.47 12/17/1993 11/30/1994 $284.00 $3,256.53 12/1/1994 11/30/1995 $292.00 $3,504.00 12/1/1995 11/30/1996 $298.00 $3,576.00 12/1/1996 11/30/1997 $307.00 $3,684.00 12/1/1997 11/30/1998 $313.00 $3,756.00 12/1/1998 11/30/1999 $316.00 $3,792.00 12/1/1999 11/30/2000 $323.00 $3,876.00 12/1/2000 11/30/2001 $334.00 $4,008.00 12/1/2001 11/30/2002 $343.00 $4,116.00 12/1/2002 11/30/2003 $347.00 $4,164.00 12/1/2003 11/30/2004 $354.00 $4,248.00 12/1/2004 11/30/2005 $363.00 $4,356.00 12/1/2005 11/30/2006 $377.00 $4,524.00 12/1/2006 11/30/2007 $389.00 $4,668.00 12/1/2007 4/30/2008 $398.00 $1,990.00 The above payments include the Veteran's monthly compensation since the April 1990 rating decision and a $34,862 retroactive payment issued with the November 2016 rating decision that granted a 30 percent rating from April 13, 1968, to April 20, 1989. The Board finds that the amounts are consistent with the rate of compensation listed in appendix B of the Veterans Benefits Administration Manual M21-1 and result in a total payment $106,676 during that period. Based on the rate of compensation listed in appendix B of the Veterans Benefits Administration Manual M21-1, the Veteran is entitled to the following rate of compensation for a 100 percent for his PTSD, a dependent spouse since April 24, 1971, and a dependent child from December 17, 1975, to December 1, 1993: Payment Period Rate of Compensation (per month) Total for Period 5/1/1968 12/31/1968 $300.00 $2,400.00 1/1/1969 6/30/1970 $400.00 $7,200.00 7/1/1970 4/23/1971 $450.00 $4,395.00 4/24/1971 7/31/1972 $478.00 $7,281.53 8/1/1972 4/30/1974 $526.00 $11,046.00 5/1/1974 7/31/1975 $620.00 $9,300.00 8/1/1975 12/16/1975 $695.00 $3,150.67 12/17/1975 9/30/1976 $722.00 $6,834.93 10/1/1976 9/30/1977 $799.00 $9,588.00 10/1/1977 9/30/1978 $831.00 $9,972.00 10/1/1978 9/30/1979 $892.00 $10,704.00 10/1/1979 9/30/1980 $980.00 $11,760.00 10/1/1980 9/30/1981 $1,120.00 $13,440.00 10/1/1981 9/30/1982 $1,246.00 $14,952.00 10/1/1982 3/31/1984 $1,337.00 $24,066.00 4/1/1984 11/30/1984 $1,383.00 $11,064.00 12/1/1984 11/30/1985 $1,427.00 $17,124.00 12/1/1985 11/30/1986 $1,471.00 $17,652.00 12/1/1986 11/30/1987 $1,493.00 $17,916.00 12/1/1987 11/30/1988 $1,554.00 $18,648.00 12/1/1988 11/30/1989 $1,616.00 $19,392.00 12/1/1989 12/31/1990 $1,692.00 $21,996.00 1/1/1991 11/30/1991 $1,783.00 $19,613.00 12/1/1991 2/29/1992 $1,849.00 $5,547.00 3/1/1992 3/31/1992 $1,940.00 $1,940.00 4/1/1992 11/30/1992 $1,849.00 $14,792.00 12/1/1992 11/30/1993 $1,904.00 $22,848.00 12/1/1993 12/16/1993 $1,952.00 $1,041.07 12/17/1993 11/30/1994 $1,879.00 $21,545.87 12/1/1994 11/30/1995 $1,930.00 $23,160.00 12/1/1995 11/30/1996 $1,979.00 $23,748.00 12/1/1996 11/30/1997 $2,036.00 $24,432.00 12/1/1997 11/30/1998 $2,078.00 $24,936.00 12/1/1998 11/30/1999 $2,104.00 $25,248.00 12/1/1999 11/30/2000 $2,153.00 $25,836.00 12/1/2000 11/30/2001 $2,228.00 $26,736.00 12/1/2001 11/30/2002 $2,287.00 $27,444.00 12/1/2002 11/30/2003 $2,318.00 $27,816.00 12/1/2003 11/30/2004 $2,366.00 $28,392.00 12/1/2004 11/30/2005 $2,429.00 $29,148.00 12/1/2005 11/30/2006 $2,528.00 $30,336.00 12/1/2006 11/30/2007 $2,610.00 $31,320.00 12/1/2007 4/30/2008 $2,669.00 $13,345.00 The above rate of compensation would result in a total payment amount of $719,106.07 for the period from May 1, 1968, to April 30, 2008. Since the Veteran had previously been paid $106,676 for his PTSD disability during the period from May 1, 1968, to April 30, 2008, the total retroactive payment he is entitled to is $612,430.07, which is the amount issued with the April 2017 rating decision and listed in the May 2017 Award Print. The Board recognizes that the December 2016 Award Print did not include a child dependent in its compensation rate calculations, and that the effective date for additional compensation for his dependent spouse was October 1, 1978, and not the April 24, 1971, date of their marriage. However, as the $719,106.07 compensation calculation includes both dependents and the correct effective dates for additional compensation, any amount that had not previously been paid as part of his prior his $106,676 total compensation is now accounted for. The Board also recognizes that page 2 of the May 2017 notification letter indicates that the additional compensation for his dependent child is effective from "December 17, 1775." This is a typo that did not affect the compensation calculations. The Board considered the April 2021 calculations provided by Veteran and his testimony that he was told the compensation rate for a 100 percent disabled veteran is $2,300 per month. See April 2021 Hearing Transcript; April 2021 Correspondence. The compensation rates provided above are based on appendix B of the Veterans Benefits Administration Manual M21-1 and accurate. The Board apologizes for any confusion during this complicated process and hopes that the tables, calculations, and explanations provided above addresses any concerns. Lastly, the Board considered the Veteran's testimony and statement that he has a stepchild and another child, J K, with his spouse, who was born in January 1970. April 2021 Hearing Transcript; April 2021 Correspondence. Unfortunately, VA was not notified of either the dependents existence within one year of VA's request for dependents status and the evidence does not support that either currently qualify as dependents. When determining the effective date for an award of additional compensation for dependents, the effective date will be the latest of the following dates: (1) the date of claim, meaning the date of birth of the child if the evidence of the event is received within one year of the event, otherwise the date notice is received of the dependent's existence, if evidence is received within one year of the VA request; (2) the date dependency arises; (3) the 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 veteran's award. 38 C.F.R. § 3.401(b). To qualify as a child or surviving child for VA purposes, the child must be a biological child, adopted child, or a stepchild of a veteran; unmarried; must either be of a qualifying age (under the age of 18 or between the ages of 18 and 23 if pursuing a course of education), or must become permanently incapable of self support before reaching the age of 18. 38 C.F.R. § 3.57. In this case, the Veteran was notified of the retroactive payment issued with the April 2017 rating decision in a May 2017 notification letter. The May 2017 notification letter also requested that the Veteran provide evidence of dependents and provided a VA Form 21-686c, Declaration of Status of Dependents. Unfortunately, the Veteran did not notify VA of the existence of either dependent until the April 2021 Board hearing, almost four years after the May 2017 notification latter. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority even to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The United States Court of Appeals for Veterans Claims held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefit. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, entitlement to a retroactive payment higher than $612,430.07 is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.