Citation Nr: 1301698 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-35 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date earlier than December 1, 2005, for dependency for the Veteran's spouse. 2. Entitlement to dependency for the Veteran's stepson. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973 and from July 1974 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 administrative decision by the Department of Veterans Affairs (VA) New Orleans Regional Office (RO) in Gretna, Louisiana. Custody of the file was subsequently transferred to the RO in Houston, Texas. In November 2012 the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO. A transcript of the hearing is of record. FINDING OF FACT The Veteran submitted a substantially complete claim for dependency in June 2003 showing he had married his then-current spouse on May 10, 2003, and that his stepson J. became his dependent the same date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of May 10, 2003, for dependency benefits for the Veteran's spouse are met. 38 U.S.C.A. §§ 5110, 5124 (West 2002); 38 C.F.R. § 3.204, 3.401(2012). 2. The criteria for entitlement to an effective date of May 10, 2003, for dependency benefits for the Veteran's stepson J. are met. 38 U.S.C.A. §§ 5110, 5124 (West 2002); 38 C.F.R. § 3.204, 3.401(2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Applicable Laws and Regulations 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). 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). VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. 38 U.S.C.A. § 5124(a), (b). VA may require the submission of documentation in support of the claimant's statement if : (1) the Veteran does not reside within a state; (2) the statement on its face raises a question as to its validity; (3) there is conflicting information of record; or, (4) there is reasonable indication, in the statement or otherwise, of fraud, or misrepresentation. 38 U.S.C.A. § 5124(c). Any person who applies for or receives any compensation or pension benefit or monetary allowances shall, as a condition for receipt or continued receipt of benefits, furnish VA upon request with his or her social security number and the social security number of any dependent or beneficiary on whose behalf, or based on whom, benefits are sought or received. However, no one shall be required to furnish a social security number for any person to whom none has been assigned. Benefits will be terminated if a beneficiary fails to furnish VA with his or her social security number or the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received, within 60 days from the date the beneficiary is requested to furnish the social security number. 38 C.F.R. § 3.216. (Emphasis added.) The effective date for additional compensation for dependents will be the latest of the following dates: (1) Date of claim (this term means the following listed in their order of applicability: (i) Date of veteran's marriage or birth or adoption of a child, if the evidence is received within 1 year of the event; otherwise (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request). (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence is received within 1 year of notification of such rating action. (4) Date of commencement of veteran's award. 38 C.F.R. § 3.401(b). Evidence and Analysis The Veteran filed a VA Form 21-686c (Declaration of Status of Dependents) in June 2003. On the form, the Veteran stated his previous marriage (for which he was currently drawing VA dependency) had terminated in March 2001 and that he had remarried in May 2003; he was claiming dependency for his new spouse. He indicated by "N/A" that his claimed new spouse had not been previously married or divorced. He left the space for his new spouse's social security number (SSN) blank but enclosed his new spouse's birth certificate and stated he and she currently resided together. He also listed two dependent children, M. and J. and provided their dates of birth (with birth certificates attached) and indicated by "N/A" that neither child had an SSN. (At the time of the application M. was already over 18 years of age but J. was still 16 years of age; a dependency benefit for M. is not an issue on appeal and will not be further discussed.) In July 2003 the RO sent the Veteran a letter advising him that his application had been received but further information was needed. Specifically, the letter asked the Veteran to provide SSNs and addresses for claimed stepchild J.; the letter explained the Veteran was not required to obtain an SSN for a claimed child if one had not been assigned but that should explain the reasons why an SSN had not been assigned. The letter also directed the Veteran to provide his claimed spouse's name and SSN and advised him of the contact information with the Social Security Administration (SSA) to obtain an SSN for his spouse. The letter advised the Veteran to respond within 30 days or the claim would be adjudicated based on the evidence of record. In September 2003 the RO issued an administrative decision denying dependency benefits for J. because no SSN had been received. The decision letter advised the Veteran that the claim would be considered if the required information was received by July 2, 2004 (one year after the notice letter in July 2003 that had specified the additional information needed); if the requested information was received after that date it would be considered a new claim. The letter did not address the status of dependency benefits for the claimed spouse. There is no indication the Veteran responded to this letter prior to July 2004. The September 2003 decision advised the Veteran of his right to appeal within one year, but there is no evidence the Veteran did so. The file contains a letter from the Veteran to the RO dated in February 2006 in which the Veteran provided the SSN for stepson J., which he stated had been assigned by SSA in June 2005. A rating decision in May 2006 granted the Veteran additional disability compensation benefits. The corresponding notice letter, dated in June 2006, advised the Veteran that he was being paid at the rate of single veteran with no dependents. The notice letter informed the Veteran that VA could not pay for J. because the Veteran had not provided the birth date; nothing was said about a pending claim for dependency for a spouse. The notice letter enclosed a VA Form 21-686c for the Veteran to fill out. On June 21, 2006, the Veteran submitted a VA Form 21-686c; he showed stepson J. as being over 18 years old but in school; J. having turned 18 years old in August 2004. The Veteran erroneously listed his current spouse in the section designated for "spouse's previous marriages" and thus did not show a current claimed spouse. In any event, the RO rejected this document because it was not signed by the Veteran. A Report of Contact dated August 22, 2006, shows the Veteran called the RO to report the SSN of his claimed new spouse, and on August 29, 2006, the Veteran submitted a Statement in Support of Claim advising the RO of his new spouse's SSN in writing. In December 2006 the RO sent the Veteran a letter advising him that the VA Form 21-686c that was submitted in June was not acceptable because it was not signed and because there was missing information. Specifically, the Veteran was advised to fill in missing information regarding his previous marriages (indicated by the RO in red) and was advised to submit supporting information about stepson J.'s school attendance on an enclosed VA Form 21-674 (Request for Approval of School Attendance). The Veteran was advised to submit the requested information not later than June 12, 2007; otherwise, information submitted after that date would be considered a new claim. On December 9, 2007, the Veteran submitted a VA Form 21-686c that corrected previous errors regarding his current and prior marriages. The Veteran listed J. as a dependent from May 2003 to October 23, 2006. The Veteran also submitted a Statement in Support of Claim on December 11, 2006, in which he asserted that he had sent the requested information on numerous occasions without response. Specifically, the Veteran stated he had previously submitted marriage license, school report and SSN, all without result. The administrative decision on appeal, issued in May 2007, granted dependency benefits for the Veteran's spouse effective from December 1, 2005. Dependency was denied for stepson J. because J. was over 18 years old and the Veteran had not provided the required information regarding school attendance; the Veteran was provided another VA Form 21-674 and advised to fill it out if he wanted to pursue dependency for J. The decision reminded the Veteran that his original claim for dependency in June 2003 had been rejected as incomplete and that he had been advised in August 2003 that the deadline for complete information was July 2, 2004, failing which any subsequently-received information would be treated as a new claim. In his Notice of Disagreement (NOD), received in July 2007, the Veteran asserted entitlement to dependency for his spouse from the date of their marriage in May 2003; the Veteran asserted he had previously submitted all required documentation of their marriage. Regarding stepson J., the Veteran asserted he had previously submitted documentation verifying school attendance through J.'s graduation in September 2006 and that he was therefore entitled to dependency for J. for the period May 2003 through September 2006. The Veteran testified before the Board in November 2012 that he received a letter from VA in July 2003 asking for SSNs for his claimed dependents, and that he thereupon called VA to report his claimed dependents were foreign nationals and did not yet have SSNs (the Veteran was unable to remember when the call was made or to whom he spoke). The Veteran testified the RO provided him a new form, which he executed and returned; because his claimed dependents had not yet been issued SSNs he attempted to use IDN numbers that were provided by the "tax people" but the RO refused to accept those numbers. Nothing further happened until he reopened his claim in 2006. The Veteran also admitted that he was divorced in 2010 from the spouse for whom he is currently seeking dependency benefits on appeal; the Veteran stated he has since married once again but was not certain if he had reported the most recent divorce and remarriage to VA. The Board finds at the outset that the RO's administrative decision in September 2003 is not an effective denial of dependency for the Veteran's spouse. Nothing in the September 2003 decision, or even in the June 2006 rating notice letter thereafter, advised the Veteran that his June 2003 claim for dependency for his spouse had been denied; accordingly the original claim for dependency for the Veteran's spouse remained open pending the additional information that was subsequently provided by the Veteran during the course of the appeal. The claim submitted by the Veteran in June 2006, which served as the basis on which dependency was subsequently granted, was not a "new" claim for dependency for the Veteran's spouse. Accordingly, entitlement to dependency for the Veteran's spouse is warranted effective from May10, 2003, the date of marriage, per 38 C.F.R. § 3.401(b). Turning to the issue dependency for the Veteran's stepson J., the September 2003 decision advised the Veteran of the reason for the denial (SSN not received) and also advised the Veteran of his right to appeal the decision within one year. The Veteran did not appeal, so the September 2003 decision is final as regards the Veteran's stepson J. See 38 C.F.R. § 20.302. A previous determination that is final and binding will be accepted as correct in the absence of proof of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Veteran has not pointed to any CUE in the September 2003 decision. However, the Board finds on review of the file that the September 2003 decision is clearly erroneous in denying an otherwise complete claim for dependency for a child, based solely on failure to submit an SSN. In that regard, 38 C.F.R. § 3.216 specifically states that nobody can be compelled to produce an SSN where none has been assigned, and in all other respects the June 2003 application provided the information required to establish dependency for stepson J. (name and date of birth, with birth certificate). None of the conditions in 38 U.S.C.A. § 5124(c) are present, so the Veteran's assertion of a relationship between himself and J. should have been acceptable at the time the claim was received. The Board acknowledges that the RO's letter in July 2003 asked the Veteran to provide the reasons (if any) that no SSN had been assigned, but the regulation does not stipulate that a claimant must provide such information as a prerequisite for dependency being granted. Further, the Veteran credibly testified that in response to the July 2003 letter he called the RO and reported the reasons an SSN had not been granted. The Board has found the criteria for basic entitlement to dependency are met for the Veteran's spouse and for stepson J. effective from May 10, 2003. In making this decision the Board intimates no opinion as to the date actual payment should commence. The Board also intimates no opinion as to whether dependency should be continued for stepson J. after his 18th birthday or whether the dependency for the Veteran's claimed spouse was terminated by divorce sometime during the period on appeal. ORDER An effective date of May 10, 2003, for dependency benefits for the Veteran's spouse is granted. An effective date of May 10, 2003, for dependency benefits for the Veteran's stepson J. is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs