Dependents Effective Date

[broncovet]

Received a call from the VA. I have appealed the effective date for dependents benefits. I have found, on my original application (21-526) in 2002 that my VSO has listed my dependent children. However, the 2004 RO decision stated they were paying me as Single, No dependents.

The person who called said that, since it took more than a year for them to make the decision, I was required to send my dependents in AGAIN, when I did not do that, it meant I would never get paid for dependents from 2002 to 2006.

Is this right?

I have documentation that shows I listed dependents in 2002, and I thought that if there was a change, I was required to report changes..no report of changes meant no changes in dependents.

Does anyone know of the regulations on this? I really dont see how they can deny my dependents benefits in 2002, when I have documentation to show that I applied for dependendents benefits back then.

There is a shredding issue..I think they shredded my dependents form. Has anyone experienced this, or knows any regulation that says we have to put in for dependents a second time when it takes them more than a year to make a decision?

I also got a decision today denying an EED on dependents benefits. In "reasons and basis", it says, "There was not additional dependency information furnished at that time".

However, I have documentation to show that I did, in fact, list dependents at that time (2002).

Edited August 26, 2009 by broncovet

[deltaj]

bronco,

I stand firm in my opinion that the 21-686c and the additional evidence requested

must be submitted prior to dependent's compensation being paid.

Now I will say there is a chance of this being over-ridden.

IF AFTER, 30 % or higher of SC comp has been granted -

the claimant submits on any peice of paper

ALL OF THE INFORMATION AND DOCUMENTATION THAT IS ASKED AND REQUESTED

as contained on the 21-686c,

then that should be considered as a claim for dependent compensation.

In other words if on that peice of paper the claimant list

Names Addresses, DOB, SSA #, includes copies of divorce decrees, marriage certificates,

birth certificates, adoption papers etc...

carlie

Here are some cases for study.

http://www.va.gov/vetapp06/files4/0627277.txt

http://www.va.gov/vetapp06/files4/0629475.txt

http://www.va.gov/vetapp06/files2/0606628.txt

http://www.va.gov/vetapp08/files3/0819294.txt

Although the evidence shows that VA had notice of the

veteran's marriage in 1970, the Board finds that the RO's

request for a completed VA Form 21-686c was reasonable under

the circumstances of this case, as his spouse's social

security number was not of record. See 38 C.F.R. §§ 3.204,

3.216. The veteran's failure to respond to the RO's request

meant that the RO was not fully informed of his spouse's

social security number until the information was provided in

December 2005.

The laws are clear that to establish entitlement to

additional benefits for a dependent spouse, the mere fact

that the veteran has submitted evidence showing that he or

she is married is not sufficient to award such benefits. He

was also required to provide his spouse's social security

number. The RO was not obligated to begin paying additional

benefits for a dependent spouse until this information was

received. The veteran was required to follow through with

specific information after VA compensation benefits were

awarded to him, as required by law. He failed to do so. As

more than a year had elapsed since the veteran's 30 percent

disability rating was assigned, and the receipt of the

required information, the RO was entitled to make the

increase in compensation for the veteran's dependent spouse

effective from the first day of the month following the month

in which the required information on his dependent spouse was

received.

Accordingly, for the reasons and bases discussed above, the

veteran's appeal must be denied on the basis of lack of

entitlement under the law. See Sabonis v. Brown, 6 Vet. App

Note that the V.A. points to the one year time frame since the award was made to the veteran [see 38 USC 5110 (f)].

[carlie]

http://www.va.gov/vetapp02/files04/0217298.txt

Analysis

The veteran contends that she is entitled to an earlier

effective date for the payment of benefits by reason of her

dependent child. She posits that additional compensation

should have been effective earlier since the evidence of her

dependents was in the file before the date that she became

eligible for additional compensation for them.

Veterans who are entitled to compensation for service-

connected disabilities are entitled to additional

compensation for dependents, including a spouse and child,

provided that the disability is rated not less than 30

percent disabling. 38 U.S.C.A. § 1115 (West 1991). In this

case, the veteran was granted an increased rating to 30

percent for her gastrointestinal disability in December

1999. She was informed of her eligibility for additional

compensation that same month, and provided a form to submit

to VA. She did not respond within one year. Subsequently

in April 2001, she submitted a form declaring dependents and

additional compensation was granted effective the date of

receipt of her declaration.

As noted above, except as otherwise provided, the effective

date of an evaluation and award of pension, compensation or

dependency and indemnity compensation based on an original

claim, a claim reopened after final disallowance, or a claim

for increase will be the date of receipt of the claim or the

date entitlement arose, whichever is the later. Awards of

additional compensation for dependents shall be effective

the latest of the following dates:

(1) Date of claim. This term means the following listed in

order of applicability:

(i) Date of veteran's marriage or birth of his or her child,

or adoption child, if the evidence of the event is received

within one year of the event otherwise.

(ii) Date notice is received of the dependent's existence,

if evidence is received within one year of VA request.

(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.

In this case, the veteran did not inform the RO of her

dependent's existence within one year of the VA's request in

December 1999. Thus, the effective date for the assignment

of additional compensation based on recognition of a

dependent child is the date the VA was informed via Form 21-

686c, April 24, 2001.

ORDER

An earlier effective date prior to June 24, 1998, for the

assignment of a 50 percent evaluation for a gastrointestinal

disability is denied.

An effective date earlier than April 24, 2001 for additional

compensation based on recognition of a dependent child is

denied.

Edited August 31, 2009 by carlie

[broncovet]

Carlie and Delta..

Thank you for looking up these BVA cases for me. They are quite helpful, and probably mean that I will have to appeal beyond the BVA.

You correctly pointed out, frankly, that the BVA is kind of like the VA in that they are going to keep making legal errors until one of the higher courts stops them.

There is not much doubt in my mind that the VA and BVA are committing legal errors in requiring the Veteran to submit MULTIPLE requests for dependents..one at application and another request after the VA err's and only awards the Veteran benefits as a single person.

The BVA and VA has, as you pointed out, gotten away with this so far. I think this legal issue needs to be "tested" by the higher courts to see if the higher courts simply allow the VA to "blow off" the Veterans initial dependent application, and make it final when the VA "overlooks" the dependents on the decision. Its another clever way the VA tries to rob Veterans of his benefits, but, if I can, I am going to close this loophole for myself and other Veterans by appealing it to the CAVC/federal courts if necessary.

I really do not think the BVA decision will stick. The VA is required, by congress, to give a sympathetic reading of all the Veterans filings, and I plan on arguing that requiring a Veteran to file for dependent benefits TWICE fails to comply with this congressional mandate. One filing should be sufficient. I need to do lots more research on this, and thank you for your help.

[carlie]

I feel confident that requesting dependent compensation is

always viewed as a claim for increase.

I think the point being missed is that the filing of a 21-526

in and of itself, is not a way of requesting an increase in compensation

benefits for our dependents because as of the filing of a 21-526

no compensation has of yet been awarded.

It is not until a disability compensation level of 30% or higher is awarded

that then makes us eligible for dependent compensation,

at which time VA is supposed to provide a 21-686c.

When the 21-686c and all of the requested documentation that

goes along with it is submitted within one year of the initial

(30 % or higher level) grant - that is when dependent compensation will be retro'd

back to the date of the award.

I feel fairly confident that this has already been addressed at least once,by a decision

of the Court, but I do not have the energy to find it now.

jmho,

carlie

[Commander Bob]

There is a shredding issue..I think they shredded my dependents form. Has anyone experienced this,

When I declared that my VA denial letter was missing elements that might point to shereddergate. My NSO, looked in my file, at my request, and reported that the missing DD215 was in a clear plastic cover in my records. Odd stuff going on over there....

[broncovet]

Carlie

Not trying to be argumentative, however, when a Veteran asks for benefits, he is assumed to be seeking the MAXIMUM benefit allowed by law. This would include things like dependents benefits, SMC, Aid and attendance, etc., if it was determined he was entitled to those benefits.

This would make sense..can you imagine someone applying for benefits and telling the Va he is seeking the lowest benefit possible? Even tho this seems ridiculious, the VA often assumes the Veteran is seeking ONLY one benefit he may be eligible for, and blowing off the others, that is, assuming the Veteran is seeking the lowest benefit possible.

It is just another trap to catch the Veteran unaware and reduce/deny/delay his benefits.

Oh, and yes, it may have already been decided by the higher courts..I need to research it much more and see if the Va can, in fact, get away with "putting it to" Veterans in still another way.

The only thing I am getting at is just because the VA has gotten away with this is the past, does not necessarily mean that they can get away with it now or in the future. For example, for years the VA got away with denying Vets claims for years because they "were not well grounded" but they can no longer do that because someone "tested" this in a higher court and won. Vets no longer have to prove their claim is "well grounded".

Edited August 31, 2009 by broncovet