Citation Nr: 1300965 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-30 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date prior to September 1, 2007 for the award of dependent compensation for the Veteran's wife and child. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from April 1980 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDINGS OF FACT 1. The Veteran and his wife were married on August [redacted], 2004. She had a child at the time who became the Veteran's step-child. 2. A copy of the marriage certificate and the step-child's birth certificate was received by VA on August 11, 2005. 3. Social Security numbers were not assigned to the Veteran's wife and step-child until approximately July 2007. 4. A Declaration of Status of Dependents, which listed the Veteran's wife and step-child, along with their Social Security numbers, was received by VA on August 29, 2007. CONCLUSION OF LAW The criteria for entitlement to an effective date of August [redacted], 2004 for the award of dependent compensation for the Veteran's wife and child have been met. 38 U.S.C.A. §§ 1115, 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4, 3.31, 3.216, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although VA has statutory and regulatory notice and duty to assist provisions, those provisions are not applicable to the Veteran's claim, as resolution of the claim is as a matter of law. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (2012). 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). Veterans having a service-connected condition evaluated at a disability rating of 30 percent or more may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18, or under 23 if attending an approved school, or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Regarding additional compensation for dependents, the effective date 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 Veteran's award. 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for dependents is either (1) the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; or (2) the date notice is received of the dependent's existence, if evidence is received within a year of notification of VA's request. 38 C.F.R. § 3.401(b)(1). The earliest that the additional award of compensation for a dependent spouse or child can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31. Any person who applies for any VA compensation or pension benefit shall furnish VA with the Social Security number of any dependent upon whom the application is based. VA shall deny an application for compensation or pension to any person who fails to furnish VA with a requested Social Security number. The application may be reconsidered if the Veteran subsequently furnishes VA with the Social Security number. However, a person is not required to furnish VA with a Social Security number for any person to whom a Social Security number has not been assigned. See 38 U.S.C.A. § 5101(c); 38 C.F.R. § 3.216. By way of background, the Veteran's service-connected disabilities were initially evaluated as at least 30 percent disabling in an April 2000 rating decision. Thereafter, the Veteran received benefits as a Veteran with a wife and two children. This was on account of his previous marriage. He was divorced in May 2003 and then received benefits as a single Veteran. In March 2005, the Veteran submitted a Declaration of Status of Dependents in which he indicated that he had remarried in August 2004 and had a step-child under 18 years of age through the new marriage. In June 2005, the RO told the Veteran to submit a copy of his marriage certificate, the step-child's birth certificate, and both of their Social Security numbers. Additional information was subsequently received by VA on August 11, 2005. The Veteran submitted the marriage certificate and the step-child's birth certificate. He was married on August [redacted], 2004-less than one year prior to submitting this information. Significantly, the Veteran's marriage was to a Chinese national and took place in China. Notably, neither the Veteran's new wife nor step-child had a Social Security number assigned to them. In August 2005, the Veteran informed the RO that he would submit the Social Security numbers as soon as he received them. It appears that Social Security numbers were not assigned to the Veteran's wife and step-child until approximately July 2007. A Declaration of Status of Dependents, which listed the Veteran's wife and step-child, along with their Social Security numbers, was received by VA on August 29, 2007. In the October 2007 decision, the RO informed the Veteran that he would be paid additional benefits for his wife and child as dependents effective September 1, 2007. This was the first day of the month following receipt of the Social Security numbers. The Veteran appealed the decision contending that it was not his fault that the Social Security Administration and/or Immigration and Naturalization Service delayed the process and that the effective date for the additional dependents should be earlier that September 1, 2007. In this case, the Veteran submitted sufficient information of his August [redacted], 2004 marriage within one year of the marriage, and included the birth certificate of his step-child who was under 18 years of age. As noted previously, any person who applies for any VA compensation or pension benefit shall furnish VA with the Social Security number of any dependent upon whom the application is based and the application will be denied without such information. See 38 U.S.C.A. § 5101(c); 38 C.F.R. § 3.216. Significantly, there is an expressly stated exception to this general rule that cannot be ignored. A person is not required to furnish VA with a Social Security number for any person to whom a Social Security number has not been assigned. Id. Because the Veteran's new wife and step-child are from China, they did not have Social Security numbers assigned to them and the Veteran could not submit any such numbers. Instead, he submitted the Social Security numbers in a timely manner after they were in fact assigned to his wife and step-child. As the Veteran's service-connected disabilities were evaluated as at least 30 percent disabling and he submitted the information that he was required to within one year of the marriage to his new wife, including the requisite information for his step-child, the Veteran is entitled to an effective date for additional dependent compensation for both his wife and step-child as the same date of the marriage-August [redacted], 2004. See 38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b)(1). Therefore, an effective date prior to September 1, 2007 for the award of dependent compensation for the Veteran's wife and child is warranted to this extent. An effective prior to the date of marriage is not permissible. Accordingly, entitlement to an effective date prior to September 1, 2007 for the award of dependent compensation for the Veteran's wife and child is warranted-August [redacted], 2004, but no earlier. In reaching this decision, the Board considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, as the preponderance of the evidence is against an earlier effective date prior to August [redacted], 2004, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date of August [redacted], 2004 for the award of dependent compensation for the Veteran's wife and child is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs