Citation Nr: 1400339 Decision Date: 01/07/14 Archive Date: 01/23/14 DOCKET NO. 10-27 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date prior to April 1, 2009 for the award of additional compensation for a dependent spouse. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to February 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an administration decision dated in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified during a hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is of record. FINDINGS OF FACT 1. A December 2006 rating decision granted service connection for right lower extremity radiculopathy with an evaluation of 10 percent effective June 7, 2006, left lower extremity radiculopathy with an evaluation of 10 percent effective June 7, 2006 and an increased rating for ankylosing spondylitis of the thoracolumbar spine from 20 percent to 40 percent effective June 7, 2006, increasing the combined rating service-connected disabilities to 50 percent from the previous combined rating of 20 percent. Prior to June 7, 2006, the Veteran did not have a combined disability evaluation such that he was eligible for additional allowance for dependents. 2. A December 2006 letter informed the Veteran that he was being paid as a single veteran with no dependents, the information he provided regarding his dependents was not complete and he was instructed to complete VA Form 21-686(c), "Declaration of Status of Dependents." The requested information was not received within one year of notification. 3. A completed VA Form 21-686(c) was not received by VA until June 5, 2009. CONCLUSION OF LAW The criteria for an effective date earlier than October 1, 2009, for dependency allowance for the Veteran's spouse have not been met. 38 U.S.C.A. §§ 1115, 5110, 5111 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.31, 3.57, 3.204, 3.205, 3.400, 3.401 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is challenging the effective date assigned following the August 2009 administrative decision that granted an additional dependency allowance for a spouse. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2013). In this regard, the May 2010 statement of the case informed the Veteran of the information and evidence needed to substantiate his claim. The statement of the case explained to the Veteran why the effective date of the award for additional dependency allowance for his spouse was not assigned to the date his disability rating was increased to 30 percent. Furthermore, all the pertinent evidence is already of record. In light of the above, further development in this regard would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). Thus, VA has satisfied its obligation to notify. Additionally, the Veteran has not alleged and the record does not show that there is outstanding evidence relevant to the issue of entitlement to an earlier effective date for the grant of additional dependency allowance for a spouse. All of the pertinent information is of record. As such, the Board finds VA's duty to assist in this case has been met. Based on the foregoing, there is no prejudice to the Veteran in proceeding to consider his claim for this benefit. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Criteria and Analysis The Veteran contends that an effective date of June 7, 2006 for the award of dependent benefits for his spouse is warranted as that is the date he first became eligible for an additional dependency allowance. He testified in March 2013 that he informed VA that he was married when he filed a claim with VA in May 1981 and that VA was also informed of his marital status later in the 1980's. He also asserts that he has been married continuously to the same woman since their marriage in 1973. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2) (2013). An award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that 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 such rating. 38 U.S.C.A. § 5110(f)(2013). Additional compensation for a new dependent will be effective 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 a veteran's award. 38 U.S.C.A. § 5110(f), (g) and (n) (West 2002); 38 C.F.R. § 3.401(b) (2013). The "date of claim" for additional compensation for dependents is the date of a veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence. 38 C.F.R. § 3.401(b)(1). The earliest that the additional award of compensation for a dependent spouse can occur is the first day of the month following the effective date. See 38 C.F.R. § 3.31. If an application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation may not be paid by reason of that application. This applies to applications for increased benefits by reason of existence of a dependent. See 38 C.F.R. § 3.109 (2013). Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C.A. § 1805 based on such evidence shall commence not earlier than the date of filing of the new claim. See 38 C.F.R. § 3.158 (2013). The Veteran submitted an original claim in March 1981 and he was granted service connection for mechanical low back pain with a disability rating of 20 percent, effective February 18, 1981. The Veteran informed the RO of his marriage to his current spouse in the March 1981 claim for compensation. The RO received VA Form 21-686c, Declaration of Status of Dependents, with a copy of the Veteran's marriage certificate in April 1986, indicating that at that time he had three dependents (his wife and two children). At that time, additional compensation for dependents would be payable to veterans with a combined disability evaluation of 30 percent or more. 38 U.S.C.A. § 315 (1976); 38 C.F.R. § 3.4(b)(2) (1985). The Veteran did not have a combined disability rating of 30 percent or more in April 1986. In an December 2006 rating decision, the Veteran was granted service connection for right lower extremity radiculopathy with an evaluation of 10 percent effective June 7, 2006, left lower extremity radiculopathy with an evaluation of 10 percent effective June 7, 2006 and an increased rating for ankylosing spondylitis of the thoracolumbar spine from 20 percent to 40 percent effective June 7, 2006. His combined rating for service-connected disabilities increased from 20 percent to 50 percent, effective June 7, 2006. This was the first time that the Veteran had a combined rating of 30 percent or more. Thus, the Veteran first qualified for additional compensation for dependents as of the effective date awarded for the 50 percent combined rating, June 7, 2006. See 38 C.F.R. § 3.4(b)(2). The letter accompanying the December 2006 rating decision informed the Veteran that he was being paid as a single veteran with no dependents. The letter also notified the Veteran the information he had provided regarding his dependants was incomplete. He was provided with VA Form 21-686(c), "Declaration of Status of Dependents," and instructed to complete every blank on the form which was applicable to him. The Veteran did not submit a completed VA Form 21-686(c) within one year of the December 2006 letter. The evidence of record indicates that the RO received a copy of a VA Form 21-686(c) on March 25, 2009. The RO sent the Veteran a letter dated in May 2009 that the application for additional benefits for a dependent did not indicate the number of times he or his spouse were previously married. The RO received a copy of a completed VA Form 21-686(c) on June 5, 2009. The August 2009 administration decision informed the Veteran that he is now being paid as a Veteran with one dependent and his payment contains an additional amount for his spouse, M, effective April 1, 2009, the first of the month following the date of receipt of his claim for additional benefits for a dependent. The August 2009 letter revealed that the RO relied upon a completed VA Form 21-686(c) in making its decision. After a review of the record, the Board finds that an effective date earlier than April 1, 2009 for the inclusion of the Veteran's dependent spouse is not warranted. The Veteran first became eligible for dependency benefits June 7, 2006, the date his combined disability rating was not less than 30 percent. See 38 U.S.C.A. § 1115(2); 38 C.F.R. § 3.4(b)(2). A December 2006 letter to the Veteran informed him that the information he had submitted was insufficient to process his dependency claim and instructed him to complete VA Form 21- 686(c). A claim for dependency was received March 25, 2009 and a completed form was not received until June 5, 2009, after the applicable one year notification period. The parties were married many years prior to the filing of any claim. The Veteran had submitted a copy of their marriage certificate in April 1986, but this was before he was eligible for receipt additional compensation for a dependent. The December 2006 letter clearly explained that information as to his marital status was incomplete. The records submitted in 1981 or in 1986 cannot serve to verify the current marital status of the Veteran approximately 20 years later. The Board notes that the Veteran contends that VA received notification in the 1980's that he was married to his current spouse and a review of the Veteran's VA Vocational Rehabilitation records and/or other Governmental Agency Records (such as the Social Security Administration or the Internal Revenue Service) and that the RO should have had enough information to determine that the Veteran had been married to his current spouse continuously since 1973. Although it may have been possible to glean from the medical record that the Veteran was currently married, this is not dispositive as to verifying dependency. VA Form 21-686(c) was required to verify dependent status after the Veteran became eligible for dependent benefits. The December 2006 letter to the Veteran indicate that the dependency status was not clear, thus inferring that while he could have had a dependent spouse at the time, this needed to be verified. If the Veteran had submitted the VA Form 21-686(c) within a year of the December 2006 decision, he would be entitled to an effective date of June 7, 2006 for the dependency award. With respect to the Veteran's argument that VA should have contacted other Federal agencies to determine the current marital status of the Veteran and to obtain information on the Veteran's spouse, the Board notes that VA has a duty to obtain or request information and pertinent records from other Federal agencies, when on notice that such evidence exits. See 38 U.S.C.A. § 5103A. The Veteran did not inform VA of any outstanding records or information that was pertinent to the issue of dependency located at other Federal agencies at any time prior to March 25, 2009. The United States Court of Appeals for Veterans Claims (the Court) has held that "[i]f a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet, App. 190, 193 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Board has considered the arguments set forth by the Veteran. However, the record shows that the information necessary to establish entitlement to payments for a dependent was not received until March 25, 2009; more than one year after the Veteran was notified of the additional information required from him. Accordingly, there is no legal basis for assigning an effective date earlier than April 1, 2009 for additional dependency allowance for a spouse and the claim is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date earlier than April 1, 2009 for the grant of additional dependency allowance for a spouse is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs