Citation Nr: 1333187 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-42 003A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than January 1, 2009, for receipt of additional compensation payable for a dependent spouse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1994 and from October 2006 to September 2007. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2009 decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans' Affairs (VA). FINDINGS OF FACT 1. The Veteran married his current spouse in July 1975. 2. Pursuant to an October 11, 2002 request by the RO, the Veteran submitted a copy of his marriage certificate; the certificate was received on October 18, 2002, within one year of the RO's request, and associated with the claims file. 3. In a July 2005 rating decision, the RO granted an increased, 20 percent rating for the Veteran's low back disability, effective July 22, 2001. As a result, the Veteran's combined rating for his service-connected disabilities was increased to 30 percent effective July 22, 2001. CONCLUSION OF LAW The criteria for an effective date of November 1, 2002, but no earlier, for payment of an additional dependency allowance for a spouse have been met. 38 U.S.C.A. §§ 5110(f) (West 2002); 38 C.F.R. §§ 3.31, 3.401 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The instant appeal turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The United States Court of Appeals for Veterans Claims (Court) found in Manning that the VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action concerning this matter is harmless error. The Board notes, however, that the reasoning for RO's action in this matter and a citation to the pertinent authority governing the assignment of the effective date for additional compensation for a dependent spouse was presented in a September 2009 statement of the case. The Veteran and his representative subsequently had an opportunity to respond. Additionally, there is no indication that there is any additional evidence to be submitted or obtained. II. Analysis Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for a spouse. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The purpose of the statute is "to defray the costs of supporting the veteran's ... dependents" when a service-connected disability is of a certain level hindering the veteran's employment abilities. Sharp v. Shinseki, 23 Vet. App. 267, 272 (2009). Under the controlling regulations, the effective date of an award of additional compensation benefits for a dependent spouse is the latest of the following: 1) the date of the marriage, if the claim is received within one year of the marriage; 2) the date notice is received of the dependent spouse's existence; 3) the date dependency arises; 4) the effective date of a qualifying disability rating provided evidence of dependency is received within one year of notification of such action; or 5) the date of commencement of the Veteran's award (See 38 C.F.R. § 3.400(o)). 38 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b). The earliest that such an award of compensation for a dependent spouse may be paid to the Veteran is the first day of the month following the effective date. 38 C.F.R. § 3.31. In July 2001, the Veteran submitted a claim for an increased rating for his service-connected low back disorder, which was rated as 10 percent disabling. The RO denied his claim in December 2001, and the Veteran perfected an appeal of that decision. During the pendency of his claim, he requested to add his spouse as a dependent to his award. In an October 11, 2002 letter, the RO requested that the Veteran send in a copy of his marriage certificate. The RO noted that it needed this information to determine the amount of money that could be paid to him. In correspondence received on October 18, 2002, the Veteran submitted the marriage certificate showing that he married his current spouse in Cochise County, Arizona, in July 1975 when they were 19 years old. The copy of the marriage certificate was then associated with the claims file. In a subsequent November 2002 decision, the RO noted that it had received the Veteran's request to add his spouse as a dependent to his compensation award but that it had to deny the request because his current overall disability rating was 20 percent and additional compensation for a dependent spouse could only be paid to a Veteran with an overall disability rating of 30 percent or more. In January 2004, the Board remanded the Veteran's claim for an increased rating for his low back disorder. In a July 2005 rating decision, the RO increased the rating for the Veteran's service connected low back disability to 20 percent, effective July 22, 2001. Consequently, his combined disability rating was increased to 30 percent effective July 22, 2001. In a September 2005 award letter, the RO informed the Veteran that he was now rated at 30 percent disabled effective July 22, 2001 and consequently entitled to additional money if he had dependents. The letter started to instruct the Veteran as to what information he would need to send the RO in order to "apply for dependent's benefits" but then simply informed him where to send information, without specifying what information was required. The letter did include a number of enclosures, including VA Form 21-686c, "Declaration of Status of Dependents." However, the Veteran was not advised that he needed to complete this form in order receive additional compensation for his surviving spouse. In an August 2008 rating decision, the Veteran was granted a higher, 40 percent rating for his low back disability effective December 4, 2004. In a September 2008 award letter, the RO informed him that he was being paid as a single Veteran with no dependents. Along with the letter, the RO enclosed VA Form 21-8764, which advised him that Veterans having a 30 percent or more service-connected evaluation could be entitled to additional compensation for a spouse. In December 2008 correspondence, the Veteran resent the RO his marriage certificate. In a February 2009 response, the RO asked the Veteran to return VA Form 21-686c. The Veteran returned the form later in February 2009. In a March 2009 award letter, the RO added the Veteran's spouse as a dependent effective December 8, 2008, the date the resent marriage certificate was received, and began paying him compensation as a Veteran with one dependent beginning January 1, 2009. In a July 2009 notice of disagreement, the Veteran asserted that he had been married to his current spouse since 1975; that this was reflected in his military records since retiring from the Army in July 1994 and that all the information he had submitted in relation to his disability claims had indicated that he was a married Veteran. Review of the record shows that pursuant to the October 11, 2002 request, the Veteran did furnish the RO with a copy of his marriage certificate. This document was received on October 18, 2002 and was associated with the claims file. Thus, for VA purposes, the date the notice was received of the spouse's existence was October 18, 2002. (The evidence indicates that the Veteran reported to VA that he was married as early as 1994; however, he did not specifically notify VA of the spouse's existence through submission of the marriage certificate until October 2002.) Then, the July 2005 rating decision, of which the Veteran was notified in the September 2005 award letter, increased the Veteran's combined disability rating to 30 percent effective July 22, 2001. Thus, for VA purposes, July 22, 2001 is the effective date of the qualifying disability rating. Accordingly, examining 38 C.F.R. § 3.401, the latest of the applicable effective dates for eligibility for additional compensation for a dependent spouse is the date that the notice of the dependency, through submission of the marriage certificate, was received by the RO, October 18, 2002. As noted, the effective date of the Veteran's receipt of a qualifying, 30 percent disability rating is earlier than this date, as is the date of the Veteran's marriage and the date dependency arose. (Reading 38 C.F.R. § 3.401(c)(4) in conjunction with § 3.400(o) would appear to indicate that the "date of the commencement of the award" would also be October 18, 2002. Id., 38 C.F.R. § 3.400(o). The Board acknowledges that the Veteran did not provide a completed VA Form 21-686c in response the RO's September 13, 2005 letter notifying him of his increased rating. However, a copy of his marriage certificate was already associated with the claims folder at that time. (The marriage certificate was submitted during the pendency of the Veteran's claim for an increased rating for his back, which was subsequently granted, thereby giving him a 30 percent combined rating effective from July 22, 2001.) In addition, the September 13, 2005 letter was not clear as to what information was required from the Veteran at that time in terms of establishing entitlement to dependents' benefits. Accordingly, an effective date of November 1, 2002, the first day of the month following October 18, 2002, is warranted for receipt by the Veteran of additional compensation payable for a dependent spouse. 38 C.F.R. § 3.31. ORDER An effective date of November 1, 2002, but no earlier, for receipt of additional compensation payable for a dependent spouse is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs