Citation Nr: 1314858	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  10-46 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to dependency allowance for the Veteran's spouse, F.W., before January 27, 2010.

REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

G. Slovick, Associate Counsel






INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket.

The Veteran served on active duty from June 1954 to September 1958, from December 1960 to May 1968, and from October 1968 to February 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 administrative decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).

In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is the record.

At the hearing in March 2013, the Veteran raised the claim for waiver of an overpayment related to the spousal allowance, which is referred to the RO for appropriate action.  


FINDING OF FACT

The Veteran first notified VA of his marriage to F.W. on January 27, 2010.


CONCLUSION OF LAW

The criteria for an effective date earlier than January 27, 2010, for the award of additional disability compensation benefits based upon the dependency of a spouse, F.W., have not been met.  38 U.S.C.A. §§ 1115, 1135, 5110(f) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.31, 3.401 (2012).



VCAA Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim.  As will be discussed in further detail below, under the facts of the present case, the law is dispositive of the issue.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  Where, as here, the law is dispositive in a matter, the notice provisions of the VCAA have no effect.  Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).  

That is because no further notice or assistance to the Veteran would result in a different outcome because the facts make clear that the Veteran is not entitled to payment of additional compensation based on a dependent spouse prior to January 27, 2010.  Accordingly, the Board finds that remand for further notification is not necessary.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004) (a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law); cf. Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003) ("[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, . . . [t]he failure to carry out . . . required development under those circumstances is nonprejudicial error").  

VA also has no further duty to assist the Veteran in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating his claim.  See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001).  Moreover, because the issue is not medical in nature, there was no duty to provide a medical examination or obtain a medical opinion.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

An additional amount of compensation may be payable for a spouse where a Veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling.  38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2).  

T effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  

The effective date of an award of additional compensation for dependents will be the latest of: (1) the date of the claim, including the date of marriage or birth; (2) the date notice of the dependent's existence is received, if the evidence is received within one year of VA's request for such information; (3) the date that dependency arose; (4) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action; or (5) the date of commencement of the Veteran's award.  38 C.F.R. § 3.401(b).

In January 2010, the RO reminded the Veteran that he had been sent a form asking about his dependents, but that no response had been received, and a reduction in benefits was proposed.

In a statement received on January 27, 2010, the Veteran explained that he was married to C.W. from 1957 until she died on January [redacted], 2003, and that he married his wife, F.W., on March [redacted], 2003.  

In March 2010, the Veteran submitted VA Form 21-686c, Declaration of Status of Dependants.  The Veteran explained that he had remarried on March [redacted], 2003.  

In March 2010, the RO notified the Veteran that his spouse, F.W., was added to his award as a dependent effective January 27, 2010, the date he notified VA that he was married to F.W.



In a statement in June 2010, the Veteran explained that he felt the effective date of F.W.'s dependent status should be April 1, 2003, the first full month of his marriage to F.W., instead of January 27, 2010.  

In his substantive appeal, the Veteran explained that he did not think to notify VA that he had remarried following his first wife's death, but that he should not be penalized for the oversight.  

In March 2013, the Veteran explained that the RO was withholding $11, 429 due to the overpayment.  He expressed his belief that his second wife should have received benefits since 2003, the date of his marriage.  

It is clear from the evidence of record that F.W. became entitled to compensation as the Veteran's dependent in April 2003, the first month after her marriage to the Veteran.  However it was not until January 2010 that the Veteran notified VA that his first wife had died and that he had been remarried F.W. in 2003. 

The effective date of an award of additional compensation for dependents will be the latest of: (1) the date of the claim, including the date of marriage or birth; (2) the date notice of the dependent's existence is received, if the evidence is received within one year of VA's request for such information; (3) the date that dependency arose; (4) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action; or (5) the date of commencement of the veteran's award.  38 C.F.R. § 3.401(b).  

Here, the Veteran was clearly married in 2003, however, VA was only notified about F.W. as a dependent on January 27, 2010.  Therefore the latest date for the award is the date notice of the dependent's existence was received, if the evidence is received within one year of VA's request for such information.  Therefore, as a matter of law, January 27, 2010 is the effective date for the spousal allowance. 






ORDER

Entitlement to dependency allowance for a spouse prior to January 27, 2010, is denied.



____________________________________________
George Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs