Citation Nr: 1317065 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-44 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date earlier than May 1, 2008, for the addition of the Veteran's spouse as his dependent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from February 1990 to December 2005, including service in the Persian Gulf from May 2002 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision of the Department of Veterans Affairs (VA) Regional Offices (RO) in Louisville, Kentucky. FINDING OF FACT The RO did not receive needed evidence regarding the Veteran's spouse's marriage and divorce from her first husband until April 16, 2008. CONCLUSION OF LAW An effective date prior to May 1, 2008, for the addition of the Veteran's spouse as his dependent 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 In this case, the basic facts are not in dispute. Because the application of the law to the undisputed facts is dispositive of this appeal, VA's duty to notify and assist are not applicable. See Mason v. Principi, 16 Vet. App. 129 (2002). The Veteran was notified in June 21, 2006, correspondence that before VA could pay additional benefits for his spouse he had to provide VA with the month and year his spouse married her first husband and the month and year his spouse divorced her first husband. The Veteran was also notified that VA may be able to pay him additional benefits for his spouse from the date the RO received his claim if they receive the information within one year of the date of the June 2006 letter or the date that the RO receives the needed information if not received within one year of the date of the June 2006 letter. The Veteran seeks entitlement to an effective date earlier than May 1, 2008, for the addition of his spouse as his dependent. 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 therefore. 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 United States Court of Appeals for Veterans Claims (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 the additional benefits paid for his spouse should date back to the December 14, 2005, effective date the RO granted for his newly service connected disabilities because he should not be penalized by delays obtaining the requested information that were not in his control. Specifically, he argues that the RO waited until June 21, 2006, to mail him notice that they needed evidence regarding his spouse's marriage and divorce from her first husband and even though he promptly requested this information from the state of South Carolina it took them until March 2008 to provide him with the needed evidence which he promptly provided the RO in April 2008. Review of the claims file reveals that in his February 2006 application for VA benefits, the Veteran identified his spouse by name and provided the date and place of their marriage, but did not provide the month and year his spouse married her first husband and the month and year his spouse divorced her first husband, as required by 38 C.F.R. §§ 3.204 and 3.216. A rating decision issued in June 2006, in pertinent part, granted service connection for headaches, rated as 30 percent disabling effective December 14, 2005, service connection for posttraumatic stress disorder (PTSD), rated as 30 percent disabling, effective December 14, 2005, service connection for low back disability rated as 20 percent disabling, effective December 14, 2005, and service connection for a left elbow disability, tinnitus, and gastroesophageal reflux disease (GERD), each rated as 10 percent disabling, effective December 14, 2005. Pursuant to that rating decision, the Veteran's combined disability rating was 70 percent from December 14, 2005, rendering him eligible for additional benefits based on dependents. In the June 21, 2006, notification letter accompanying the rating decision, the Veteran was notified that, before VA could pay the additional benefits for his spouse, he needed to provide VA with the month and year his spouse married her first husband and the month and year his spouse divorced her first husband. The Veteran was also notified that VA may be able to pay him additional benefits for his spouse from the date the RO received his claim if they receive the information within one year of the date of the June 2006 letter or the date that the RO receives the needed information if not received within one year of the date of the June 2006 letter. The letter was sent to the Veteran's last address of record, in addition to his service representative, and was not returned as undeliverable. The Veteran did not respond at that time. On April 16, 2008, the RO received the Veteran's VA Form 21-686c, Declaration of Status of Dependents, which included for the first time notice of the month and year his spouse married her first husband and the month and year his spouse divorced her first husband. In an August 2008 rating action, the Veteran was awarded entitlement to a higher rate of compensation based upon the addition of his spouse as his dependents and notified that the increased payment begins the first day of the month following the RO's receipt of his spouse's information on April 16, 2008. The rating action indicated that the Veteran received increased payment starting May 1, 2008. The April 16, 2008, VA Form 21-686c is the earliest response to VA's request for specific information regarding the month and year his spouse married her first husband and the month and year his spouse divorced her first husband following his February 2006 claim. Moreover, the April 16, 2008, VA Form 21-686c was not received by the RO within one year of the RO's specific request for this information in its June 21, 2006, letter to the Veteran. In addition, the effective date assigned for the addition of the Veteran's dependent spouse was the first day following the month of the receipt of this information, or May 1, 2008. By regulation, this is the earliest effective date that can be assigned. Accordingly, entitlement to an effective date earlier than May 1, 2008, for the addition of the Veteran's spouse as his dependents is denied. ORDER Entitlement to an effective date earlier than May 1, 2008, for the addition of the Veteran's spouse as his dependant is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs