Citation Nr: 1311832 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-28 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than January 1, 2009, for the addition of the Veteran's spouse and child as his dependents. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to June 1971, and from September 1971 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Roanoke, Virginia. Although the Veteran requested the opportunity to testify at a Board hearing, after meeting with his service representative on the day of the hearing he decided that he no longer sought one. Therefore, his hearing request is considered withdrawn. FINDING OF FACT The Veteran did not submit a claim for the addition of the Veteran's spouse and his son, G. L. H., as his dependents until December 3, 2008. CONCLUSION OF LAW An effective date prior to January 1, 2009, for the addition of the Veteran's spouse and his son, G. L. H., as his dependents is not warranted. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.4, 3.204, 3.213, 3.401 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist The Veteran's claim arises from his disagreement with the effective date assigned following the addition of his spouse and his son as dependents. Once a claim is granted it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, as discussed below, the Veteran contends that he was never informed by VA about adding dependents. Here, contrary to his report, he was notified in May 2004 correspondence that additional information was necessary before the VA could pay additional benefits for dependents. The Veteran was further provided with a VA Form 21-686c, Declaration of Status of Dependents, at that time. As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2012), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. Earlier Effective Date The Veteran seeks entitlement to an effective date earlier than January 1, 2009, for the addition of the Veteran's spouse and his son, G. L. H., as his dependents. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the 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 notification of such rating action. 38 U.S.C.A. § 5110(f). 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 U.S.C.A. § 1115 (West 2002); 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. This term means the following, listed in their order of applicability: (i) Date of Veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event 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 of dependency 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). Regarding "establishing entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of § 3.204." 38 C.F.R. § 3.213(a). 38 C.F.R. § 3.204 indicates that: 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. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216). 38 C.F.R. § 3.204 In addition, the Board notes that the Court has found that while acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). The Veteran contends that he notified VA of the existence of dependents prior to December 3, 2008, to specifically include in initial his July 1989 application for VA benefits. He further contends that he never received information from the VA indicating that they needed additional information pertaining to dependents. Review of the claims file reveals that in his July 1989 application for VA benefits, the Veteran identified his spouse by name, and provided the date and place of their marriage, but did not provide further identifying information to include a social security number, as required by 38 C.F.R. §§ 3.204 and 3.216. He also provided the names of children other than G.L.H. Notably, however, the Veteran's dependent son, G.L.H., was not born until January 1, 1990. Even so, the Veteran was not eligible at that time for additional benefits based on dependents, as he was not service-connected for disability rated as 30 percent or more disabling. 38 U.S.C.A. § 1115 (West 2002); 38 C.F.R. § 3.4(b)(2). A rating decision issued in May 2004, in pertinent part, granted service connection for diabetes mellitus, rated as 20 percent disabling effective May 16, 2002, and service connection for osteoarthritis of the left and right knees, each rated as 10 percent disabling, effective May 16, 2003. Pursuant to that rating decision, the Veteran's combined disability rating was 40 percent from May 16, 2003, rendering him eligible for additional benefits based on dependents. In a May 2004 notification letter accompanying the rating decision, the Veteran was notified that, before VA could pay the additional benefits, he needed to complete the enclosed VA Form 21-686c, Declaration of Status of Dependents. The letter was sent to the Veteran's current address of record, in addition to his service representative, and was not returned as undeliverable. The Veteran did not respond at that time. On December 3, 2008, the Veteran contacted VA via telephone and provided the name, date of birth, and social security number for his spouse, as well as the date they were married. He also provided the name and date of birth for his son, G.L.H. In December 2008 correspondence, he was informed that the marital history provided on his application was incomplete and that VA had no record of G.L.H. as a dependent. He was further notified that in May 2004, VA had requested that he complete a Declaration of Status of Dependents before additional benefits could be paid. However, no response was received from the Veteran until his December 3, 2008, telephone call to VA. The Veteran was provided a new form and, on December 16, 2008, he submitted a completed Declaration of Status of Dependents form indentifying his spouse and son, G.L.H., by name and providing their respective social security numbers. Following a subsequent December 2008 VA request for additional documentation, he submitted a copy of a decree evidencing divorce from his first wife; a marriage certificate documenting his marriage to his current spouse; and a court order pertaining to the legal adoption of his son, G.L.H. In a January 2009 rating action, the Veteran was awarded entitlement to a higher rate of compensation based upon the addition of his spouse and his son, G.L.H., as his dependents, and notified that the increased payment begins the first day of the month following the effective date. The rating action indicated that the Veteran received increased payment starting January 1, 2009. The December 3, 2008, claim is the earliest response to VA's request for specific information regarding the identity of dependents following the May 2004 establishment of the Veteran's eligibility to a higher rate of compensation. The effective date assigned for the addition of the Veteran's dependent spouse and dependent son was the first day following the month of the receipt of that claim, or January 1, 2009. By regulation, this is the earliest effective date that can be assigned. Accordingly, entitlement to an effective date earlier than January 1, 2009, for the addition of the Veteran's spouse and son as his dependents is denied. ORDER Entitlement to an effective date earlier than January 1, 2009, for the addition of the Veteran's spouse and son as his dependants is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs