Citation Nr: 1329418 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 12-05 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to April 21, 2011, for the award of additional compensation for the Veteran's dependent spouse. ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. In April 1987, the VA received a VA Form 21-526e, "Veteran's Application for Compensation or Pension at Separation from Service," signed by the Veteran, wherein he indicated to whom he was married, and the date of the marriage. 2. In June 1987, VA received a VA Form 21-686c, "Declaration Of Status Of Dependents," in which the Veteran identified the name of his spouse, and additionallly submitted a copy of a marriage certificate. 3. An October 2005 rating decision granted an increased rating of 20 percent for service-connected chronic low back strain, resulting in a combined rating of 40 percent, effective July 12, 2005. 4. An October 2005 letter requested that the Veteran submit information regarding his dependent on a completed VA Form 21-686c. 5. On April 21, 2011, the RO received communication from the Veteran regarding the addition of his dependent spouse to his award. CONCLUSION OF LAW The criteria for an effective date prior to April 21, 2011, for the award of additional compensation for the Veteran's dependent spouse, have not been met. 38 U.S.C.A. §§ 1115, 5110, 5111 (West 2002); 38 C.F.R. §§ 3.31, 3.401 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable decision by the agency of original jurisdiction on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the Veteran was not provided a notice letter with respect to his claim. In April 2011, he requested that his dependent spouse be added to his award and the RO granted the additional award in a May 2011 rating determination. The Veteran then submitted a notice of disagreement with respect to the assigned effective date for the award of additional compensation for his spouse. However, the Board finds that a remand for a notification letter is not required in this case. The Veteran's claim for an earlier effective date for the award of compensation for his spouse is dependent on the law and there is no dispute as to the accuracy or adequacy of the facts. As no reasonable possibility exists that any further factual development would assist in substantiating the claim, should any deficiencies of notice exist, they are rendered moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). Duty to Assist All evidence relevant to the Veteran's claim has been secured. It is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that pertinent evidence constructively of record is outstanding. The Veteran has not contended that the facts are incorrect or that any evidence is missing. Instead, he has simply asserted that the effective date for the award of compensation for his spouse should be the date of his marriage-July 23, 1983. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Criteria - Earlier Effective Date In this case, a May 2011 rating determination granted the award of compensation for the Veteran's dependent spouse with an effective date of April 21, 2011, the date the Veteran completed his claim. The May 2011 rating determination explained that the payment start date "begins the first day of the month following your effective date." The letter indicated that the payment start date was "May 1, 2010." However, this was administrative error as the RO specifically indicated that the Veteran's claim was received on April 21, 2011 and that the payment start date is the "first day of the month following the effective date." See 38 C.F.R. §§ 3.31, 3.401(b). Regardless of the payment start date, the issue before the Board is whether the Veteran is entitled to an effective date prior to April 21, 2011 for the award of additional compensation for the Veteran's dependent spouse. 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. 38 U.S.C.A. § 5110(a). 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; 38 C.F.R. § 3.4(b)(2). Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, 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 1 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). The "date of claim" for additional compensation for dependents is the date of the Veteran'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; 38 C.F.R. § 3.401. 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 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). Actual payment of an additional award of compensation for a dependent spouse is the first day of the month following the effective date. 38 C.F.R. § 3.31. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that the effective date for the award of additional compensation for his dependent spouse should be July 23, 1983-the date of his marriage. In April 1987, VA received a VA Form 21-526e, Veteran's Application for Compensation or Pension at Separation from Service, and the Veteran indicated that he was married and listed his spouse's name. In June 1987, VA received a VA Form 21-686c from the Veteran, which included the following information: (1) the Veteran's name, address, and Social Security number; (2) designation of his marital status (married), the date of his marriage, and the name of his spouse. The VA Form 21-686c did not include a social security number for his spouse. The Veteran also submitted a copy of his marriage certificate, which indicated that he was married on July 23, 1983. In a December 1987 rating decision, the RO granted service connection for status post ulnar nerve transposition with carpal tunnel release, right, and assigned a 20 percent rating from April 16, 1987, and granted service connection for chronic low back strain and assigned a zero percent rating from April 16, 1987. In November 1998, VA received the Veteran's claim for an increased rating for his service-connected post ulnar nerve transposition with carpal tunnel release, right. In an April 1999 rating decision, the RO continued the 20 percent rating for the status post ulnar nerve transposition with carpal tunnel release, right. On July 12, 2005, VA received the Veteran's claim for an increased rating for his status post ulnar nerve transposition with carpal tunnel release, right, and a claim for an increased rating for his chronic low back strain. In an October 2005 rating decision, the RO continued the 20 percent rating for status post ulnar nerve transposition with carpal tunnel release, right, and assigned a higher 20 percent rating for chronic low back strain from July 12, 2005. In an October 2005 letter accompanying the rating decision, the Veteran was informed that he was being paid as a "single veteran with no dependents." The Veteran was notified that the information about his dependents was incomplete. The letter stated: "Before we can pay additional benefits for your dependent(s), send us the following: VA Form 21-686c, "Declaration of Status of Dependents. Please fill out every blank on the form which applies to you." The letter explained: "If we do not receive the evidence within one year from the date of this letter, we can only pay you from the date we receive the evidence." A report of contact dated April 21, 2011, indicated that the Veteran sought to add his wife to his award. The Veteran provided the date of birth of his spouse, her social security number, and the date and place of their marriage (the year was listed as 1984 in the report of contact instead of the correct date of 1983). In a May 2011 letter determination, the RO granted an award of additional compensation for the Veteran's dependent spouse. The determination indicated that the Veteran's claim was received on April 21, 2011, and that the payment start date begins the first day of the month following the claim. 38 C.F.R. § 3.31. In consideration of the entire evidence of record including the facts summarized above, the Board finds that the Veteran is not entitled to an effective date prior to April 21, 2011, for the award of additional compensation for his dependent spouse. Initially, the record reflects that the Veteran was first eligible for an award of additional compensation for a dependent as a result of the October 2005 rating decision wherein the Veteran's combined disability rating increased to 40 percent, effective July 12, 2005. 38 C.F.R. § 3.4(b)(2). However, the accompanying letter to the October 2005 rating decision requested that the Veteran complete a VA Form 21-686c and return it to VA in order to be paid an additional allowance for his dependent. The record at that time contained a VA Form 21-686c and copy of a marriage certificate, but there was no social security number for the Veteran's dependent spouse. The Veteran did not respond to the October 2005 letter. The first communication from the Veteran following the October 2005 rating decision and letter is the April 21, 2011 report of contact. As the Veteran did not respond within one year of notification of the October 2005 rating decision with the requested information regarding his dependent spouse, an effective date prior to April 21, 2011, is not warranted. 38 C.F.R. § 3.401(b). Again, review of the claims file reflects that the Veteran submitted information to the RO in June 1987 regarding his dependent spouse. The Veteran submitted a VA Form 21-686c and a copy of his marriage certificate in June 1987. However, the Veteran did not include a social security number for his spouse. See 38 C.F.R. § 3.204(a)(1). In addition, the Veteran did not yet have disability rated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2). As noted, the Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C.A. § 501. In order to receive an additional amount of compensation for a dependent, sufficient proof of such dependency is necessary. 38 C.F.R. § 3.205. See McColley v. West, 13 Vet. App. 553, 556-557 (2000). Although the Veteran essentially argues that he did not need to again provide proof of dependency after eligibility for additional compensation for dependents had been established because there were no changes in the status or information relating to any of his dependent, VA had no way of knowing this, short of actually having the information provided again following the establishment of eligibility. As noted above, the original VA Form 21-686c did not include the Veteran's spouse's social security number, which is required by VA regulations. See 38 C.F.R. § 3.204. In an October 2005 letter, the Veteran was requested to provide information regarding his spouse in a completed VA Form 21-686c so that he could receive additional payment for his dependent spouse. He did not respond to the letter. The Court has held that "[i]f a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet, App. 190, 193 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 383 (1994). Therefore, the Veteran is not entitled to an effective date prior to April 21, 2011, when VA received the requested information regarding the Veteran's dependent spouse, which included his spouse's social security number. The Board finds that the earliest effective date that can be assigned is April 21, 2011. There is no legal basis for assigning an earlier effective date. In making this determination, the Board notes that the payment start date continues to be May 1, 2011, the first day of the month following the effective date of the claim (April 21, 2011). See 38 C.F.R. §§ 3.31, 3.401(b)(1). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt is not for application and the Veteran's claim is denied. ORDER Entitlement to an effective date prior to April 21, 2011, for the award of additional compensation for the Veteran's dependent spouse, is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs