Citation Nr: 1314313	
Decision Date: 05/01/13    Archive Date: 05/15/13

DOCKET NO.  10-13 049	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an effective date prior to March 1, 2009 for payment of additional compensation for the Veteran's dependent spouse.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to May 2000.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In February 2010, the Veteran testified at a hearing before a local Decision Review Officer (DRO).  The transcript is of record.  In February 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge, and a transcript of that hearing is of record.  At that time, the Veteran also submitted additional evidence to the Board, along with a signed waiver of RO consideration of that evidence in accordance with 38 C.F.R. § 20.1304 (2012).

During the February 2013 hearing, the Veteran explained that he wanted to file a claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  The issue is therefore REFERRED to the RO for appropriate action.


FINDING OF FACT

Notice of the Veteran's marriage to his current spouse was not received at the RO within one year of their marriage, or prior to February 10, 2009.


CONCLUSION OF LAW

Entitlement to an effective date earlier than March 1, 2009 for payment of additional compensation for the Veteran's current spouse is denied.  38 U.S.C.A.  §§ 1115, 5101, 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.401 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, it will assist in substantiating or that is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

The Board notes that the issue on appeal was first raised in a notice of disagreement submitted in response to the VA's notice of its decision to award additional compensation for the Veteran's current spouse effective from March 1, 2009.  Under 38 U.S.C. § 5103(a), the VA, upon receipt of a complete or substantially complete application, must notify the claimant of the information and evidence necessary to substantiate the claim for benefits.  However, in this case the issue on appeal did not stem from an application for benefits, it stemmed from a notice of disagreement to the effective date assigned for the award of benefits, additional compensation for a dependent spouse.  With respect to the issue at hand-the effective date assigned for adding a qualifying dependent to the Veteran's award, the required statutory notice as to an award of additional compensation for a dependent spouse has served its purpose, and its application was no longer required as to the downstream issue of the assignment of an effective date for the award of additional compensaton for the dependent spouse.  38 C.F.R. § 3.159(b)(3) (2012); See Dingess/Hartman, 19 Vet. App. at 490-91.  Rather, under 38 U.S.C. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the "agency of original jurisdiction" must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement.  If, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  See VAOPGCPREC 8-03.

A February 2010 statement of the case (SOC) informed the veteran of the law governing the assignment of an effective date with respect to the issue on appeal.  38 U.S.C.A. § 7105.  Furthermore, the claim at issue is a claim for an earlier effective date and all the pertinent evidence is already of record.  In light of the above, further development in this regard would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided).  The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning an earlier effective date and citing the applicable statutes and regulations.  The Veteran has had ample opportunity to respond/supplement the record.  Neither he nor his representative has alleged that he was prejudiced by the notice given in this matter.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).

Duty to Assist

All evidence relevant to the Veteran's claim has been secured.  It is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that pertinent evidence constructively of record is outstanding.  The Board acknowledges a request from the Veteran's representative that the claim should be remanded for the RO to obtain records from the Richmond, Virginia VA Medical Center (VAMC), in the hope that those records would show that the Veteran notified the VAMC of his changes in dependent status much earlier than February 10, 2009.  However, the Board does not find that such a request is necessary.  As will be explained in further detail below, the Veteran was notified by three separate letters that he should notify the RO right away regarding any changes in his dependents and/or marital status.  The Veteran's representative has not identified any requirement that the RO check alternative sources for information regarding dependents; and in light of the RO's specific instructions to the Veteran regarding whom to notify of such changes, this is not a reasonable expectation.  Therefore, the possible existence of records at the VAMC and in connection to a VA home loan, would not be probative of the matter at hand, i.e., whether the Veteran notified the RO of his second marriage prior to February 10, 2009.  The regulations place the burden of notifying the RO on the Veteran and that information was conveyed to him.  The RO has no duty to seek such information through other sources by searching through VAMC records.  

The Board acknowledges that there are some instances in which VA divisions are constructively on notice of information provided to other VA divisions.  In Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), the United States Court of Appeals for Veterans Claims (Court) addressed a discrepancy in records provided to the Court by the appellant and those acknowledged to have been in the claims file by the Board. Some of those documents were generated by VA.  As the Court could only consider records that had been considered by the Board, this determination was significant.  The Court held that where a dispute arises as to the content of the record and where documents proffered by the appellant are within the Secretary's control and could reasonably be expected to be a part of the record before the Secretary and the Board, such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record on appeal.  On its face, the holding in Bell is focused on reconciling the record before the Board with the record before the Court.  This holding does not address the procedure by which the RO obtains information regarding dependents.  Similarly, in Murincsak v. Derwinski, the Court held that VA has a duty to obtain Social Security Administration (SSA) records as the records were pertinent to the claim.  Murincsak, 2 Vet. App. 363 (1992).  The Board finds that it is beyond the scope of the holdings in Bell and Murincsak, as cited during the hearing before the undersigned VLJ, to require the RO to periodically search VAMC records for possible updates to dependents' status, particularly when a specific procedure has been established and communicated to the Veteran on three separate occasions.  Therefore, as the VAMC records and records related to a VA home loan, would not affect the outcome of the appeal, a remand to obtain those records is not necessary.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

In addition, the Veteran has reported that he informed Defense Finance and Accounting Service (DFAS) and Defense Enrollment Entitlement Reporting System (DEERS) regarding his divorce from a former spouse and marriage to his current spouse on July 1, 2005.  He also submitted a statement regarding communication with the Defense Management Data Center (DMDC) noting that documents on file showed that the Veteran reported the divorce from a former spouse in October 2003 and the marriage to his current spouse on July 1, 2005.  However, the Board finds that a remand is not necessary to attempt to obtain records from DFAS or DEERS.  These are separate entities from VA and the fact that the Veteran notified DFAS and DEERS prior to notifying VA of the change in his marital status, does not change the outcome of this appeal and, therefore, a remand for records is not necessary.  See Sabonis, id.  

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  During the hearings, the VLJ and DRO addressed the issue at hand and questioned the Veteran regarding his claim for an earlier effective date.  The Veteran conveyed his awareness of the issue by conceding that he did not directly contact the RO, but reported that he felt he was entitled to an earlier effective date on the basis of correspondence with the VAMC, DFAS, DEERS, and the paperwork for a VA home loan, regarding the marriage to his new spouse prior to February 10, 2009.  The Veteran was also assisted at the February 2013 hearing by two accredited representatives from the Veterans of the Foreign Wars of the United States.  The representatives and the VLJ asked questions to ascertain whether an earlier effective date was warranted for the Veteran's new spouse, N.S.J.  The DRO also asked specific questions directed at identifying whether the Veteran submitted evidence to the RO prior to February 10, 2009.  The VLJ and DRO also sought to identify any pertinent evidence not currently associated with the claim.  As noted above, during the February 2013 hearing, the Veteran's representative contended that records from the VAMC should be obtained with respect to the claim.  However, as noted above, these are not pertinent to the Veteran's claim as the burden is on the Veteran to notify the RO with respect to changes in marital status and obtaining such records would not change the outcome of this case.
 
Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board and DRO hearings.  By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error.  Again, the Veteran's statements and testimony as well as the statements from his representative indicate an awareness of the law and the evidence required to substantiate the claim for an effective date earlier than March 1, 2009.  See generally Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007); see also see also Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (noting that representation is a factor that must be considered when determining whether that appellant has been prejudiced by a notice error).

Analysis

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

In a January 2001 rating decision, the RO granted service connection for coronary artery disease and assigned a disability rating of 60 percent, effective June 1, 2000, granted service connection for diabetes mellitus and assigned a disability rating of 20 percent, effective June 1, 2000, granted service connection for degenerative joint disease, cervical spine, with history of bulging discs and assigned a disability rating of 20 percent, effective, June 1, 2000, granted service connection for tinnitus, and assigned a disability rating of 10 percent, effective June 1, 2000, granted service connection for degenerative joint disease, lumbosacral spine, with a disability rating of 10 percent, effective June 1, 2000, granted service connection for bilateral hearing loss, with a noncompensable disability rating, effective June 1, 2000, granted service connection for scars, chest, and left thigh, with a noncompensable disability rating, effective June 1, 2000, and granted service connection for hypertension, with a noncompensable disability rating, effective June 1, 2000.  The combined disability rating was 80 percent and, therefore, the Veteran was entitled to additional compensation, effective June 1, 2000.  See 38 C.F.R. § 3.4(b)(2).  The January 2001 letter that notified the Veteran of the decision, indicated that the Veteran was being paid additional benefits for his then spouse, K.  He was instructed to let the RO know right away if there was any change in the status of his dependents.  

Following this letter, the first correspondence to the RO from the Veteran regarding a change of his marital status was received on February 10, 2009.  In the status of dependents questionnaire, the Veteran noted that his current spouse was N., and that they had married on July 1, 2005.  

In a statement received on March 9, 2009, the Veteran stated that he thought he had notified VA of the divorce from K., and reported marriage to N.  

The Veteran submitted a copy of the certificate of marriage between the Veteran and his current spouse, N.  The certificate of marriage shows that the Veteran and his current spouse were married on July 1, 2005.    

In a June 2009 statement, the Veteran stated that he was lawfully married to his current spouse on July 1, 2005.  He stated that when he divorced his previous spouse, he reported this to the Department of the Army.  He stated that the reason he reported this to the Army Retirement Services Branch was because his VA disability entitlement was deducted from his Army Retirement entitlement.  He stated that when he married his current spouse, he again reported this to the Army Retirement Services Branch.  He stated that his current spouse had been his dependent as of July 1, 2005, not March 1, 2009.  He stated that he reported his divorce from his former spouse, and marriage to his current spouse, through the appropriate authority to the best of his knowledge, which he believed to be the Department of the Army.

During the February 2010 hearing before a DRO, the Veteran testified that he reported his new wife by phone in July 2005 through the Department of Army Retirement Services Branches.  He stated that he reported her to the Department of Defense to get a new identification card.  He also noted that he reported his divorce to DFAS and reported his marriage on July 1, 2005 to the Department of the Army.  He also stated that he filled out paperwork to purchase a house through VA and reported her as a spouse.  He stated that he was never sent paperwork to verify his dependents and was not trying to hide anything from anybody.  He stated that to the best of his knowledge that his reporting through the Department of Defense (DoD) would be sufficient and that DoD would communicate with the VA to determine how much to deduct out of his retirement pay to offset his VA disability.  

During his hearing before the undersigned VLJ, the Veteran reported that he notified DFAS, DEERS, the VAMC, and listed his spouse on paperwork when obtaining a home loan from VA.  He acknowledged that DFAS and DEERS were separate entities from VA but thought that DFAS and DEERS would contact VA regarding the change in his marital status.  

The Veteran's essential argument is that he thought by listing his new spouse's name on paperwork for a VA home loan, telling the VAMC that his marital status had changed, and his correspondence to DFAS and DEERS regarding his change of marital status, would allow for an effective date earlier than March 1, 2009.  The Board finds that the assertions do not provide a basis to grant the claim under applicable law.

Despite his current assertions that he did not know he had to contact the RO regarding his change in marital status, the Veteran was specifically informed that he must keep the RO updated on any changes in his dependents and their status.  Under 38 U.S.C.A. § 1115, a veteran rated at not less than 30 percent shall be entitled to additional compensation for dependents.  In a January 2001 letter that accompanied the January 2001 rating decision, the letter informed the Veteran that he was being paid additional benefits for his spouse, K.  The RO instructed the Veteran to:  "Let us know right away if there is any change in the status of your dependents."  There was no suggestion that notifying other Federal agencies of changes in dependent status would fulfill his obligation to notify the RO.  Thus, the Veteran was notified that he was receiving an additional award for his spouse, that he must report any changes in number or status of dependents to the RO, and that it was his responsibility to do so.  In addition, a letter dated in December 2007 notified the Veteran regarding his new rate of compensation.  In the letter, the Veteran was instructed to: "Please advise us immediately if you return to active military service or if your address or marital status changes.  If you are receiving additional benefits for dependents, notify us immediately of any change in status."  With respect to contacting VA, the letter stated that:  "Any questions or correspondence should be submitted to the VA Regional Office handling your account."  A December 2008 letter notified the Veteran regarding the Veteran's new rate of compensation.  In the letter, the Veteran was instructed to: "Please advise us immediately if you return to active military service or if your address or marital status changes.  If you are receiving additional benefits for dependents, notify us immediately of any change in status."  With respect to contacting VA, the letter stated that: "Any questions or correspondence should be submitted to the VA Regional Office handling your account."  

From these letters, it is reasonable to expect that the Veteran would understand that the burden was on him to promptly provide the change in his marital status to the RO.  On three separate occasions, the Veteran was told to contact the RO immediately if there were any changes in his marital status.  In addition, the November 2007 and December 2008 letters instructed the Veteran to contact the RO regarding any questions or correspondence related to his account.  The Veteran is uniquely aware of his marital status and instantly aware of any changes.  To place the burden of obtaining and searching for such information through all VA channels is not a reasonable interpretation of the regulations.  Indeed, the Veteran knew to notify other agencies regarding his marital status, but did not attempt to notify the RO regarding the change of his marital status.  Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  See 38 U.S.C. § 5107(a) (providing the appellant "has the responsibility to present and support a claim for benefits"); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed.Cir.2009) ("It is the veteran's 'general evidentiary burden' to establish all elements of his claim.").  Here, the Veteran was notified on three separate occasions to notify the RO right away if there was a change in his marital/dependent status.  He did not provide such information until February 10, 2009.  Thus, the Veteran was responsible for notifying the RO with respect to any changes in his marital status.  The Board now turns to the appropriate effective date for the addition of his current spouse.  

Under the controlling regulations, the effective date of an award of additional compensation benefits for a dependent spouse is the latest of the following: 1) the date of the marriage, if the claim is received within one year of the marriage; 2) the date notice is received of the dependent spouse's existence; 3) the date dependency arises; 4) the effective date of a qualifying disability rating provided evidence of dependency is received within one year of notification of such action; or 5) the date of commencement of the Veteran's award.  38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b).  The earliest that the additional award of compensation for a dependent spouse may be paid to the Veteran is the first day of the month following the effective date.  38 C.F.R. § 3.31.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).

In this case, there is no apparent dispute as to the date of receipt by the RO of notice of the Veteran's second marriage.  The Veteran has not suggested that he notified the RO any earlier than February 10, 2009.  While the Veteran's representative has suggested that this information was provided to his VA healthcare providers, DFAS, and DEERS, and the Veteran's new spouse's name was listed on a home loan from VA, this is immaterial to the claim.  The Veteran was specifically notified that he should inform the RO, and it was not reasonable for him to assume that such information, if actually reported to his medical care providers, would find its way to the RO.

If the Veteran had informed the RO of his marriage to his current spouse at any time within one year of July 1, 2005, the date of claim would have been the date of their marriage.  See 38 C.F.R. § 3.401(b)(1); see also 38 C.F.R. § 3.204(a) (accepting the Veteran's statement as proof of marriage).  In this case, however, the Veteran did not inform the RO within the one year period.  Instead, his first correspondence related to a change in his marital status was received on February 10, 2009, years later.  As such, the one-year time period had lapsed.  Thus, the provisions of 38 C.F.R. § 3.401(b)(1) do not apply.  Therefore, the date of claim became the date that notice of the Veteran's marriage to his current spouse was received, which was February 10, 2009.  Increases to the amount of monetary benefits paid will be made on the first day of the calendar month following the month in which the award or increased award became effective, but not before.  See 38 U.S.C.A. § 5111(a).  Since the Veteran's claim was received on February 10, 2009, the increase reflecting the addition of a dependent spouse properly takes effect on March 1, 2009.  Therefore, an earlier effective date prior to March 1, 2009, for the addition of the Veteran's current spouse as a dependent is not warranted.  

The Board has considered whether an informal claim was received or should have been inferred prior to the date of receipt of the formal claim.  To constitute an informal claim for a benefit, a communication or action must indicate an intent on the part of the claimant to apply for the benefit and must identify the benefit sought.  38 C.F.R. § 3.155.  In this case, prior to receipt of the February 10, 2009 communication from the Veteran with respect to his current spouse's name, there is no other correspondence regarding the addition of his current spouse.  The Court has held that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).  As discussed above, information reported to the Veteran's health care providers or in connection to a VA home loan cannot be considered an application for benefits where such information was not provided to the RO, and where there was no indicated intent that it would be used for such purposes.  After a thorough review of the claims folder, the Board finds that the earliest correspondence was received on February 10, 2009.  Therefore, the effective date of March 1, 2009 is the proper effective date for the addition of his dependent spouse.

As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

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ORDER

Entitlement to an effective date prior to March 1, 2009 for payment of additional compensation for the Veteran's dependent spouse is denied.



____________________________________________
U.R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs