Citation Nr: 1327806 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-08 900 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an effective date prior to August 1, 2009 for payment of additional compensation benefits for a dependent spouse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the RO in Roanoke, Virginia. A Board hearing before a Veterans Law Judge was requested and scheduled, but the Veteran withdrew his hearing request in a January 2012 letter. See 38 C.F.R. § 20.704(e). FINDINGS OF FACT 1. Since September 1969, the Veteran has received VA disability compensation benefits at a rate of 30 percent or higher. At the time of his initial award of disability compensation, the Veteran was unmarried. 2. The Veteran apparently married his current spouse in November 1982. 3. A mostly completed but unsigned VA Form 21-686c (Declaration of the Status of Dependents) was provided to VA in July 2009. A signed copy of this document was received by VA in August 2009. 4. There is no evidence on file that the Veteran notified VA of his November 1982 marriage prior to July 2009. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for payment of additional benefits for a dependent spouse prior to August 1, 2009, have not been met. 38 U.S.C.A. §§ 501, 5110, 5112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.400, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a 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, 3.326(a) (2012). This case, however, is one in which the law is dispositive of the issue. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Under such circumstances, the duties to notify and assist are not applicable. Mason v. Principi, 16 Vet. App. 129 (2002). Further, VA has no duty to assist the appellant in obtaining evidence where, as here, there is no reasonable possibility that any further assistance would aid him in substantiating this claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Wensch v. Principi, 15 Vet. App. 362, 368 (2001). Analysis Any veteran entitled to compensation for disability rated not less than 30 percent is entitled to additional compensation for dependents, to include a spouse. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The Veteran contends that an effective date prior to August 1, 2009 should be assigned for the award of additional compensation for his spouse. He essentially contends that he had been in receipt of the requisite level of VA disability compensation since September 1969, that he married his wife in November 1982, and that he did not know until recently that he could receive additional compensation for a dependent spouse. He asserts that VA should have informed him of this matter, and that an earlier effective date should be assigned for the award of additional compensation for a dependent spouse because VA did not inform him of his eligibility for this benefit. See his August 2009 notice of disagreement, his March 2010 VA Form 9 (substantive appeal), and the written brief by his representative. In a VA Form 21-526 (Veteran's Application for Compensation or Pension) dated in February 1970, the Veteran wrote "N.A." in the section of the form pertaining to his marital status. Since September 1969, the Veteran has received VA disability compensation benefits at a rate of 30 percent or higher. By letters to the Veteran dated in December 2007 and December 2008, VA advised him that his monthly VA disability compensation had been increased due to a recent change in the law. He was also advised, "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." In July 2009, the RO received a mostly completed (but unsigned) VA Form 21-686c (Declaration of the Status of Dependents) from the Veteran in which he reported he had married his current spouse in November 1982. He related that he had been married only once to his current spouse. On this form, the Veteran also stated that his wife had two prior marriages, and was divorced in May 1970 and in December 1974 from these prior marriages. The RO returned the unsigned VA Form 21-686c to the Veteran in July 2009, and in August 2009, received a signed copy of the form from him. The claims file does not contain a copy of the Veteran's marriage certificate, or a copy of his wife's prior divorce decrees. It is not clear whether the RO has ever received such documents from the Veteran. See 38 C.F.R. § 3.205. Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if VA is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage which meets the requirements of 38 C.F.R. § 3.205(a) together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b). Despite the lack of documentary evidence regarding the Veteran's marriage, by a letter to the Veteran dated in August 2009, the RO informed him that it had added his current spouse to his award effective August 1, 2009, the first day of the month following receipt of his claim to add his dependent spouse to his award. The Veteran appealed. Governing law and regulation provide that the effective date of the award of any benefit or increase by reason of marriage or the birth/adoption of a child shall be the date of that event if proof is received by VA within a year from the date of marriage, birth or adoption. 38 U.S.C.A. § 5110(n) (West 2002 & Supp. 2012). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award. 38 C.F.R. § 3.401(b) (2012). The "date of claim" for additional compensation for dependents is the date of the appellant's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C.A. § 5110 (f), (n) (West 2002 & Supp. 2012); 38 C.F.R. § 3.401(b) (2012). The Board has reviewed all the evidence of record. There is no evidence on file showing that the Veteran apprised VA of his marriage to his current spouse until July 2009, and he does not contend that he did. Moreover, the record reflects that Veteran was advised of the existence of the benefit of additional compensation for dependents, and was told to advise VA immediately of any marital status changes on at least two occasions prior to his submission of a VA Form 21-686c. The Veteran failed to follow the strict requirements of notification of VA upon change in his dependency status. The law establishes the effective date of commencement of additional compensation for a spouse from the date of the Veteran's advising VA of his marriage. The Board finds that the appellant was married to his current spouse in November 1982, based on his signed statement in July 2009. Nevertheless, he did not provide the proper documentation and information regarding his marriage until many years after the date of marriage. As the Veteran did not provide VA with proof of his marriage within one year of the event, the proper effective date can be no earlier than the date that he notified VA of the marriage, i.e., July 2009. U.S.C.A. § 5110 (f), (n); 38 C.F.R. § 3.401(b)(1). As such, the effective date for additional payment based on his wife as a dependent is August 1, 2009, the first day of the month following submission of the required marriage information to the RO. 38 C.F.R. § 3.31. An effective date prior to August 1, 2009 for the payment of additional benefits for the Veteran's dependent spouse is denied. The claim must be denied due to the lack of entitlement under the law. Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date for payment of additional benefits for a dependent spouse, prior to August 1, 2009, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs