Citation Nr: 1300312 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-34 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to increased dependency compensation from April 12, 2003 to September 22, 2006 based on marriage. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to March 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to increased dependency compensation for the periods from March 5, 2005 to August 31, 2007 and from April 12, 2003 to September 22, 2006. In November 2009, the Veteran filed a Notice of Disagreement. The RO furnished the Veteran a Statement of the Case in July 2010 with respect to both periods in contention. However, later in July 2010, the Veteran filed a Substantive Appeal (VA Form 9) specifying that he intended to appeal the issue of entitlement to increased dependency compensation only for the period from April 12, 2003 to September 22, 2006. Thus, he perfected a timely substantive appeal only for the specified time period for this issue. In March 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. During the hearing, the Veteran submitted additional evidence in the form of a marriage certificate and divorce decree. He waived initial RO consideration of the newly submitted evidence. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. In his January 2001 claim for service connection, the Veteran listed his first former spouse, B., as a dependent. 2. The Veteran was paid dependency compensation for his first former spouse, B., following the granting of service connection for his bilateral knee disability and heart disorder in April 2001. 3. The Veteran and his first former spouse, B., divorced in 2001. 4. As VA had essentially been put on notice in January 2001 that the Veteran was married, it had effectively been put on notice that the Veteran had been married during the period from April 12, 2003 to September 22, 2006. 5. In November 2009, the RO received notice that the Veteran had been specifically married to his second former spouse, T., from April 12, 2003 to September 22, 2006, the entirety of the period under appeal. CONCLUSION OF LAW The criteria for increased dependency compensation from April 12, 2003 to September 22, 2006 based on marriage have been met. 38 U.S.C.A. §§ 1115, 1134, 1135, 5107(b), 5110(n) (West 2002); 38 C.F.R. §§ 3.4, 3.102, 3.652 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). In light of the fully favorable determination to grant dependency compensation for the period on appeal, no further discussion of VCAA compliance is necessary regarding this issue. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for a spouse. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The purpose of the statute is to defray the costs of supporting the veteran's dependents when a service-connected disability is of a certain level hindering the veteran's employment abilities. Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). A veteran who is receiving compensation is required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a) (2012). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b) (2012). In his January 2001 claim for service connection, the Veteran listed his first former spouse, B., as a dependent. Upon being granted service connection for his bilateral knee disability and heart disorder in April 2001, the Veteran was paid dependency compensation for his first former spouse, B. The Veteran and his first former spouse, B., divorced in 2001. In July 2009, the Veteran received a Status of Dependency Questionnaire for the purpose of certifying his current dependency status to maintain continued entitlement. However, the Veteran did not certify that he was still married to his first former spouse, B. From May 1, 2001 to September 30, 2009, the Veteran had been receiving dependency compensation benefits based on his marriage to his first former spouse, B. In October 2009, the RO discontinued dependency compensation benefits based on the Veteran's marriage to his first former spouse, B., effective May 1, 2001. In November 2009, the Veteran notified the RO that he had been married to his second former spouse, T., from April 12, 2003 to September 22, 2006. He submitted a marriage license and divorce decree in support of his claim. The Veteran has contended that he was not aware and never notified of the requirement that he notify VA of changes in marital status. The Court has held that persons dealing with the Government are charged with knowledge of federal statutes and lawfully promulgated agency regulations "regardless of actual knowledge of what is in the "[r]egulations or of the hardship resulting from innocent ignorance." See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991). In this case, the Veteran does not dispute his lack of entitlement to benefits based on a dependent spouse from May 1, 2001 through April 11, 2003 and from September 23, 2006 through September 30, 2009. He acknowledges his failure in reporting his change in marital status during those time periods. However, the Veteran contends that for the period from April 12, 2003 to September 22, 2006, he should still be entitled to dependency compensation benefits based on marriage because he was married for the entire period, albeit to his second former spouse, T., and thus had no change in marital status during that specific period of time. The Board notes that the RO had essentially been put on notice in the Veteran's January 2001 claim that he was married, and therefore, it had also effectively been put on notice that the Veteran had been married during the time period of April 12, 2003 to September 22, 2006. Additionally, although the RO did not receive notice of the divorce of the Veteran's first spouse and his remarriage until 2009, the Board finds extenuating circumstances in this case which must be considered. In particular, the record tends to support the Veteran's contention that he was never notified of the need to report a change in dependents. The record shows that following the April 2001 granting of service connection for the Veteran's disabilities, the first letter to make any reference requiring the Veteran to notify VA of a change in marital status or other change in dependents was a June 2008 decision on dependency benefits for one of the Veteran's children. Specifically, there is no indication that the RO ever formally requested the Veteran to certify any or all of the eligibility factors which established his entitlement to the benefit being paid prior to the July 2009 Status of Dependency Questionnaire. See 38 C.F.R. § 3.652. The Board finds that although the Veteran did not notify the RO that he had divorced his first former spouse and remarried his second former spouse until 2009, the RO also did not notify the Veteran that he needed to report a change in marital status until 2008. In any case, the RO was effectively put on notice that the Veteran was married during the period on appeal when the Veteran reported his marital status in his initial January 2001 claim for benefits. Moreover, the fact remains that the Veteran was actually married for the period from April 12, 2003 to September 22, 2006, even though it was to his second former spouse, T., instead of his first former spouse, B. Therefore, in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that dependency compensation benefits from April 12, 2003 to September 22, 2006 based on marriage are warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to increased dependency compensation from April 12, 2003 to September 22, 2006 based on marriage is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs