Citation Nr: 1312013 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-48 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date earlier than January 14, 2010, for recognition of the Veteran's spouse as a dependent for purposes of an increase of his compensation award. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971, and from February 1973 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In that decision, the RO recognized the Veteran's spouse as a dependent for purposes of increasing his compensation award, effective January 14, 2010. The Veteran timely appealed the assigned effective date, and the issue is properly before the Board. FINDINGS OF FACT 1. In a March 2008 rating decision, the RO granted service connection for diabetes and assigned a 20 percent rating, which increased the Veteran's combined disability rating from 10 to 30 percent, effective February 27, 2007. 2. In the March 17, 2008 letter informing the Veteran of this decision, the RO also informed him that it was paying him as a single veteran with no dependents, that his application did not indicate the year he married his spouse, and that before VA could pay him additional benefits for a dependent, he would have to send a VA Form 21-686c, "Declaration of Status of Dependents." 3. The Veteran did not provide the requested information within a year of the March 17, 2008 letter (by March 17, 2009), and next communicated with the RO regarding this issue on January 14, 2010, providing the requested information. CONCLUSION OF LAW The criteria for an effective date earlier than January 14, 2010, for recognition of the Veteran's spouse as a dependent for purposes of an increase of his compensation award, have not been met. 38 U.S.C.A. §§ 1115, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4, 3.102, 3.204, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As noted above, however, the claim for an earlier effective date arises from the Veteran's disagreement with effective date assigned in connection with the recognition of his spouse as a dependent. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Further discussion of the VCAA's notification requirements with regard to this claim is therefore unnecessary. In addition, the letters discussed below, requesting specific information from the Veteran regarding the year of his marriage to his current spouse, informed him of what was required in order for him to receive additional compensation based on recognition of her as his dependent. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, as discussed below, the RO assisted the Veteran by requesting specific information regarding the status of his spouse, without which it could not grant the requested benefit. No other assistance, including a VA examination, would have aided in substantiating the earlier effective date claim in this case. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an earlier effective date for recognition of the Veteran's spouse as a dependent for purposes of an increase of his compensation award is thus ready to be considered on the merits. Analysis 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). The statute and regulations specifically provide that 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); 38 C.F.R. § 3.401(b)(3). The statute and regulation further provides that the effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event, if proof of such event is received by the Secretary within one year from the date of marriage. 38 U.S.C.A. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). An additional amount of compensation may be payable for a spouse when a veteran is entitled to compensation based on disability evaluated as 30 per cent or more disabling. 38 U.S.C.A. § 1115(1)(A); 38 C.F.R. § 3.4(b)(2). In this case, in a March 2008 rating decision, the RO granted service connection for diabetes and assigned a 20 percent rating, which increased the Veteran's combined disability rating from 10 to 30 percent, effective February 27, 2007. In the March 17, 2008 letter informing the Veteran of this decision, the RO also informed him that it was paying him as a single veteran with no dependents, that the application he submitted in connection with the benefits that were granted did not indicate the year he married his spouse, and that before VA could pay him additional benefits for a dependent, he would have to send a VA Form 21-686c, Declaration of Status of Dependents. The Board notes that the RO's statement with regard to the missing information was accurate, because, in the section of the Veteran's May 2007 formal claim that was granted by the RO in March 2008 (the Veteran having filed an informal claim in February 2007), the Veteran indicated that he was married to his spouse on a particular month and day, but the year was left blank. In the March 17, 2008 letter, the RO also informed the Veteran that it might be able to pay him from the date of claim, if it received the requested information or evidence within one year from the date of the letter and it was determined that the Veteran was entitled to the benefits. The RO also told the Veteran in this letter that if it did not receive the evidence within one year from the date of the notification letter, it could only pay him from the date it received the evidence. The next communication received from the Veteran in this regard was his January 14, 2010 declaration of status of dependents which gave the month, day, and year of his marriage to his current spouse, as did the attached marriage certificate. The RO therefore made the recognition of the Veteran's spouse as his dependent and added her to his award effective the January 14, 2010 date of the receipt of the form with the pertinent information by the VA RO. The RO properly notified the Veteran of the information that was required to complete his application and of the March 17, 2009 date by which the information had to be received in order for the Veteran to be entitled to an effective date of the date he became eligible for additional compensation for his spouse as a dependent. 38 C.F.R. § 3.204(a)(1) provides that VA will accept the statement of a claimant as proof of marriage provided that it contains "the date (month and year) . . . of the event" (emphasis added). As noted, the information provided by the Veteran in his May 2007 formal claim did not contain the year of his marriage, and there was no other document containing this information. The RO was therefore acting consistent with VA regulations when it requested additional information as proof of the marriage, specifically, the year of the event. The Veteran only provided this information in January 2010. As that was more than one year after the March 2008 date that the RO notified the Veteran that he was eligible to add a spouse to his award as a dependent and that the information on file regarding the Veteran's dependents was incomplete, he was not entitled to an effective date based on this date. The appropriate effective date was therefore the January 14, 2010 date that the RO received the Veteran's communication with this evidence on the VA Form 21-686c, Declaration of Status of Dependents and in the attached marriage certificate. The Veteran argued in his notice of disagreement and substantive appeal that recognition of his spouse as a dependent should be effective the same February 2007 date that his compensation increased to 30 percent, because he submitted along with his May 2007 formal claim a marriage certificate and divorce decrees. The only documents in the claims file, however, that appear immediately following the claim are three divorce decrees, two of them relating to the Veteran's divorce from his prior spouses and one of which relates to his current spouse's divorce from her former spouse. There is no marriage certificate or other document indicating the year of his marriage to his current spouse. As conceded by the Veteran's representative in the April 2012 informal hearing presentation, though the Veteran did provide information in connection with his claim, neither his marriage certificate nor a VA Form 21-686c with the year of his marriage to his current spouse was part of the information received at that time or until January 14, 2010, which was more than a year after his disability compensation was increased to 30 percent in March 2008. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran did not provide the relevant and requested information necessary for recognition of his spouse as a dependent for purposes of an increase in his compensation award until January 14, 2010, more than one year after his compensation was increased to 30 percent and he was notified of the deficiency in the information he had provided with regard to his current spouse, specifically, the year of their marriage. The benefit of the doubt doctrine is therefore not for application, and an effective date prior to January 14, 2010 for recognition of the Veteran's spouse as a dependent for purposes of an increase of his compensation award is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date earlier than January 14, 2010, for recognition of the Veteran's spouse as a dependent for purposes of an increase of his compensation award is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs