Citation Nr: 22039733 Decision Date: 07/12/22 Archive Date: 07/12/22 DOCKET NO. 19-04 422 DATE: July 12, 2022 ORDER The claim of entitlement to an effective date earlier than December 1, 2015, for the award of dependency benefits for the Veteran's son, A.K., is denied. FINDING OF FACT On November 27, 2015, and no earlier, the Veteran informed the Department of Veterans Affairs (VA) Regional Office (RO) that his son, A.K., was born in September 2014. CONCLUSION OF LAW The criteria for an effective date prior to December 1, 2015, for the award of dependency benefits for the Veteran's son, A.K., are not met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.204, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2009 to October 2012. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2015 notification letter by the Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to higher ratings for right shoulder disability and residual scars post-right shoulder surgery will be addressed in a separate Board appellate document. The Veteran appeared for a Board hearing in February 2021 before the undersigned Veterans Law Judge. The hearing transcript is associated with the record. The Veteran was inadvertently scheduled for an additional Board hearing in November 2021. In November 2021, the Veteran responded and declined the additional hearing. 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); 38 C.F.R. § 3.401(b)(3). The effective date for additional compensation for dependents 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 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). The "date of claim" for additional compensation for a dependent child is the date of the child's birth/adoption, if evidence of the event is received within one year of the event; otherwise, it is 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(f), (n); 38 C.F.R. § 3.40 (b)(1). The earliest date that an additional award of compensation for a dependent child can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. In this case, the Veteran asserts that his son, A.K., should have been added as a dependent earlier than December 1, 2015. Specifically, he asserts that the effective date should be the date of his son's birth in September 2014. He states that he submitted an application for dependency benefits for A.K. in November 2014 through the VA eBenefits website. In the April 2016 notice of disagreement, the Veteran wrote that he first filed a claim for dependency benefits on November 27, 2014, but that VA incorrectly documented his claim was filed on November 27, 2015. During the February 2021 Board hearing, the Veteran reiterated that he filed his claim for dependency benefits in November 2014 on the VA eBenefits website, two months after A.K.'s birth in September 2014. He reported that he called VA a year later to check the status of his dependency claim for A.K. The evidence reflects that the Veteran's son, A.K. was born in September 2014. The Board notes that the VA benefits website indicates that once all necessary steps are completed, a confirmation number and notice is sent to the VA eBenefits message center page, as well as the applicant's email indicating the application was submitted successfully. See https://benefits.va.gov/BENEFITS/benefits-summary/fdcposter.pdf; https://www.va.gov/disability/file-disability-claim-form-21-526ez/introduction (last accessed July 12, 2022). Here, however, the Veteran has not provided any correspondence or confirmation page from the VA eBenefits website that his application was completed or a copy of the status page reflecting the application was submitted, and the presumption of regularity dictates that if such application were filed, it would be part of the Veteran's claims file. The Board also notes that the VA-Form 21-686c was submitted electronically with a date stamp of November 27, 2015, rather than November 27, 2014, as alleged by the Veteran. The RO correctly determined in the Statement of the Case that the record does not show any communication indicating that the Veteran wished to add A.K. as a dependent on his award on November 27, 2014, or any other date prior to November 27, 2015. The RO explained the first communication requesting the addition of A.K. as a dependent was on VA Form 21-686c, which was received on November 27, 2015. The RO also noted the Veteran wrote November 27, 2015, in the date section next to his electronic signature. Thus, despite the Veteran's assertions, VA was not informed of A.K.'s birth until November 27, 2015, over a year after A.K.'s birth. On that date, an electronically signed and completed "Declaration of Status of Dependents" form (VA Form 21-686c) was received by VA. In the November 2015 letter, the RO awarded dependency benefits for A.K. effective December 1, 2015, as the earliest date that an additional award of compensation for a dependent child can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. The Board acknowledges that A.K. was born in September 2014. Again, however, there is no documentation in the Veteran's file that he informed VA of A.K.'s birth prior to November 27, 2015, more than one year after A.K.'s birth. The Veteran's statement, alone, that he submitted a claim through the VA eBenefits website without documentation, including account activity history reflecting a completed application for dependency benefits was submitted, is not sufficient to show that he submitted a claim for dependency benefits prior to November 27, 2015. Based on current laws and regulations, the RO appropriately determined that A.K. could not be added as the Veteran's dependent child from the date of his birth in September 2014, because the claim was not timely received within a year from the date of birth. The Board acknowledges the Veteran's testimony that he submitted a claim in November 2014 and followed up with VA a year later. It is possible that the Veteran may be referring to a June 2013 claim for dependency benefits for his other children, as a March 2014 notification letter documents that the Veteran inquired on the status of his dependency claim earlier that month (prior to A.K.'s birth). However, there was no claim for the addition of A.K. as a dependent child prior to November 27, 2015, and no inquiry as to the status of dependency benefits for A.K. filed prior to that date, as alleged. The evidence persuasively weighs against the finding that VA was informed of A.K.'s birth prior to November 27, 2015. The Board has no authority to create exceptions, or to overturn or to disregard the very specific limitations on the assignment of effective dates. 38 U.S.C. § 7104(a); see Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). Moreover, the Board cannot grant the benefit sought on an equitable basis, as "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. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Although the Board is required to "render a decision which grants every benefit that can be supported in law," under these circumstances, there is no basis in law to grant the appeal for an earlier effective date for the award of dependency benefits. See 38 C.F.R. § 3.103(a). Accordingly, the Veteran's appeal as to this must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.