Citation Nr: 1314464 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 10-40 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to payment of additional compensation benefits for a dependent spouse, prior to September 1, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. FINDINGS OF FACT 1. In June 2003, the Veteran submitted a claim for benefits with dependency information and a marriage certificate from his first marriage. 2. In an April 2008 rating decision, the RO increased the Veteran's combined disability rating to 30 percent effective June 2003, making him eligible to receive additional compensation for dependents. 3. In a May 2008 letter, the Veteran was informed that he was being paid as a single Veteran with no dependents. The RO provided the Veteran with VA Form 21-686c. The Veteran was also instructed that he had one year to submit the required information. 4. The Veteran returned the Form 21-686c in August 2009. The information provided conflicted with information provided on the June 2003 application for benefits, to include a different Social Security number for his current spouse. 5. In August 2009, the RO requested additional information and later that month the Veteran submitted a copy of the marriage license and Social Security card for his current spouse. 6. The RO added the Veteran's spouse as a dependent effective September 1, 2009. CONCLUSION OF LAW The criteria for an effective date prior to September 1, 2009, for payment of additional compensation benefits due to a dependent spouse have not been met. 38 U.S.C.A. §§ 1115, 5110 (West 2002); 38 C.F.R. §§ 3.31, 3.204, 3.216, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court), has held that VA's duties to notify and assist are not applicable to cases, such as this one, involving an earlier effective date claim in which the law, rather than the evidence, is dispositive. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). II. Analysis The Veteran contended during his hearing testimony that he did not provide dependency information to the RO when requested because he thought his disability payment was based on his marital status while on active duty. The enabling regulation provides with respect to the effective date for additional compensation or pension for dependents that the effective date will be the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one 1 year of notification of such rating action; or (4) date of commencement of Veteran's award. 38 C.F.R. § 3.401(b). 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 30 percent or more service-connected condition may be entitled to additional compensation. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The regulation further defines the date of claim for additional compensation for dependents as the 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 one year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within 1 year of notification of such rating action. 38 C.F.R. § 3.401(b)(1). The regulations also provide that VA will accept the written statement of a claimant as proof of marriage, dissolution of a marriage, or the birth of a child for purposes of determining entitlement, provided the statement contains the date (month and year) and place of the marriage and the full name and relationship of the other person to the claimant. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.204(a)(1). Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. 38 C.F.R. § 3.652(a). When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652(b). The earliest date for commencement of payment of an additional award for a dependent (spouse or child) is the first day of the month following the effective date. 38 C.F.R. § 3.31. If an application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation may not be paid by reason of that application. This applies to applications for increased benefits by reason of existence of a dependent. See 38 C.F.R. § 3.109(a)(2). Turning to the evidence of record, the Veteran's initial claim for benefits dated June 2003 indicates that he was married to MES in 00/00/69 and married his current spouse on February [redacted], 1984. The Veteran submitted a marriage certificate indicating that he married MEW on September [redacted], 1969. In April 2008, the RO granted a disability rating of 30 percent, effective June 2003. The cover letter, dated May 2008, indicates that the Veteran was being paid as a single veteran with no dependents. The form also indicated that an additional allowance would be paid for a spouse, dependent parents and/or unmarried children (within certain categories). Enclosed with the letter was VA Form 21-686c, Declaration of Status of Dependents. The letter indicated that the Veteran would be paid for additional dependents from his date of claim if the RO received the information and evidence within one year of the date of the notification. The RO received the Veteran's VA Form 21-686c on August 4, 2009. The form had a different social security number for his current spouse from the June 2003 original application from benefits. The Veteran also listed that the Veteran's spouse had a previous marriage, which was not reported on the original claim. The Veteran's former wife was listed as, MEW, rather than MES. The RO responded less than a week later, requesting the Veteran to provide his current spouse's correct information and the correct dates of his marriage. Later that month a copy of the marriage license and Social Security card for the Veteran's current spouse was received. The Veteran began receiving additional benefits for his dependent spouse the first day of the following month, September 1, 2009. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to additional compensation for a dependent spouse prior to September 1, 2009. The Veteran received notification that he was eligible for additional benefits in the May 2008 notification letter. The Veteran was instructed to supply information concerning his dependents within a year of the date of the letter. There was insufficient evidence in the claims file to determine the Veteran's current marital status. The Veteran did not respond with the required information, which even then conflicted with prior information submitted on his initial claim form, until August 2009. Thus, the RO provided the Veteran with the earliest effective date allowed by law for additional compensation for a dependent spouse. It's unclear why the Veteran thought his dependent payments were based on whether he had dependents during active duty, which was approximately forty years prior to the rating decision which awarded him a 30 percent disability rating. He was given specific notice in May 2008 that he would receive higher payments if he currently had dependents and to return the required form or information to the RO within a one year period. Although it is unfortunate that the Veteran did not do as he was directed in the May 2008 letter, his lack of awareness does not provide a legal basis for an earlier effective date for additional benefits for his spouse. The Board notes that the Veteran's arguments essentially constitute a theory of entitlement to equitable relief. The Board, however, is without authority to grant it on an equitable basis and instead is constrained to follow the specific provisions of the law. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-441 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The evidence is against an effective date prior to September 1, 2009, for an award of additional compensation benefits based on a dependent. Accordingly, the Veteran's appeal must be denied on the basis of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to payment of additional compensation benefits for a dependent spouse, prior to September 1, 2009, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs