Citation Nr: 1331598 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 10-10 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than March 6, 2007, for payment of additional compensation for the Veteran's dependent spouse, K.R. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to April 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2007 administrative decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's request for a waiver of indebtedness. The procedural history of this case is complicated. Essentially, by way of an administrative decision to deny the Veteran's request of a waiver of overpayment, effective March 2007, K.R. was recognized as the Veteran's spouse. Thereafter, the Veteran has disagreed not with the decision to deny the overpayment but, rather, the effective date for the recognition which he believes should be May 2000, when he married K.R. In December 2009, the Veteran testified at his local RO before a Decision Review Officer. A transcript of that hearing is of record. The Veteran claims the transcript is inaccurate, without specifying how. The Veteran was scheduled for a BVA videoconference Board Hearing for February 2011 at the VA Regional Office in Waco, Texas. The Veteran failed to appear for the scheduled hearing. No good cause was given for such failure to appear, barring a future hearing. In February 2011, the Veteran waived RO review so that additional records could be submitted directly to the Board without review by the agency of original jurisdiction. FINDING OF FACT The Veteran notified VA of his marriage to K.R. on August 29, 2006. He made a formal claim to add K.R. within a year thereafter. CONCLUSION OF LAW The criteria for an effective date of August 29, 2006, but no sooner, for the award of additional disability compensation benefits based upon the dependency of a spouse, have been met. 38 U.S.C.A. §§ 1115, 1135, 5110(f) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.31, 3.401 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The RO's March 2007 grant of additional compensation for the Veteran's dependent spouse K.R. stems from the Veteran's claim for a waiver of indebtedness. Since this claim emanates from an initial grant of compensation it is considered a "downstream" issue and as such does not require specific VCAA notice. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Significantly, while the Veteran has asserted that records demonstrate that he wished to add his wife as a dependent in May 2000, despite multiple requests for evidence demonstrating this, the Veteran has not submitted such evidence. Laws and Regulations 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). 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant, his duly-authorized representative, or some person acting as next friend who is not sui juris may be considered an informal claim. Such 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 as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Facts and Analysis The claim file includes a March 14, 2000 notice of dissolution of marriage between the Veteran and F.R., and a marriage certificate demonstrating the marriage of the Veteran to K.R. on May 1, 2000. This information was submitted in March 2007. On March 16, 2006, the RO received a letter from the Veteran's then-wife, K.R., requesting an apportionment of the Veteran's VA benefits based on her status as the Veteran's spouse. On August 29, 2006, a representative from the Oakland RO contacted the Veteran regarding K.R.'s request. A report of the telephone conversation notes that the Veteran stated that he had divorced his ex-wife, F.R., on May 1, 2000 and that he married K.R. on the same day. The Veteran stated that he gave this information to the DAV and the VA medical center in May 2000. The RO representative stated that this was not found in the Veteran's file and he was advised to get copies of record from the VAMC with a date stamp, otherwise recognition of K.R. would only be effective from the date of the claim. The report of contact further noted that, two days later, a representative from the DAV reported that DAV had no copies of the documents cited by the Veteran. Following a denial of waiver of overpayment in March 2007 correspondence, the Veteran requested that K.R. be added to his award effective May 2000 and removed December 12, 2006, the date in which the Veteran and K.R. were divorced. A VA form 21-686 Declaration of Status of Dependents was appended to this statement. The claim file includes a search on TRICARE which notes that K.R. had no health care coverage under that plan. The Veteran asserts that K.R.'s effective date as a dependent spouse should be May 1, 2000, the day on which they married. It is clear from the evidence of record that the Veteran became eligible for additional benefits for his marriage to K.R. in June 2000, the first month after her marriage to the Veteran. However, it was not until August 2006 that the Veteran notified VA by telephone that that he had married K.R. and divorced F.R. There is no evidence of record that an informal or formal claim was made at any time prior to the August 2006 phone call to establish K.R. as a dependent. The Veteran has on several occasions argued that he submitted documentation of his marriage to K.R. in May 2000. Despite numerous requests from the RO, however, he has not submitted any documentation to demonstrate that the RO was informed of the Veteran's marriage at that time. Moreover, TRICARE does not reflect that K.R. was covered by their program, and DAV denies having any information pertaining to a dependency claim made in 2000 or at any other time prior to the effective date assigned in this decision. As there is no objective evidence demonstrating that the Veteran sought to have K.R. established as a dependent prior to August 2006, an effective date earlier than that point in time is not warranted. VA was notified that the Veteran had married K.R. on March 16, 2006 by K.R. An informal claim was not made by the Veteran until August 29, 2006 and, only then because he was contacted by the RO. As the effective date must be the latest of the dates enumerated in 38 C.F.R. § 3.401(b), i.e. the later date between the date in which VA became aware of K.R. as the Veteran's spouse or the date in which a claim (here informal claim) was made, the Veteran is entitled to benefits for K.R. no earlier than the date of the informal claim, August 29, 2006. ORDER Entitlement to an effective date of August 29, 2006, but no earlier, for payment of additional compensation for the Veteran's dependent spouse K.R., is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs