Citation Nr: 1409751 Decision Date: 03/11/14 Archive Date: 03/20/14 DOCKET NO. 10-24 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date prior to September 1, 2009 for a dependency allowance as a result of the Veteran's marriage to L.R. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1976 and from April 1982 to April 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 administrative decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In that decision, the RO assigned an effective date of September 1, 2009 for the addition of L.R. as the Veteran's dependent spouse for compensation purposes. The Veteran disagreed with the effective date and this appeal ensued. In addition to the paper claims file, there is an electronic claims file associated with the Veteran's claim. The documents in this file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. FINDINGS OF FACT 1. The Veteran has been in receipt of compensation for a combined disability rating of at least 30 percent since April 13, 1993. 2. A VA Form 21-4170 Statement of Marital Relationship, and a cover letter requesting entitlement to dependency allowance for L.R. was received at the RO no earlier than August 14, 2009. 3. The RO first received evidence no earlier than August 14, 2009 showing that the Veteran and L.R. entered into a common law marriage on May 1, 2008. 4. The Veteran and L.R. were legally married on October 3, 2009, but on October 22, 2009, the RO recognized as valid for dependency purposes the May 1, 2008 common law marriage between the Veteran and L.R. 5. On September 1, 2009, the Veteran began receiving payment for his dependent spouse, L.R. CONCLUSION OF LAW The criteria for an effective prior to September 1, 2009, for entitlement to a dependency allowance for L.R. have not been met. 38 U.S.C.A. §§ 1115, 5110 (f) and (n) (West 2002 & Supp. 2013); 38 C.F.R. § § 3.1, 3.31, 3.401(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an effective date prior to September 1, 2009 for entitlement to a dependency allowance for his spouse, L.R. The record reflects that the Veteran entered into a common law marriage on May 1, 2008. This common law marriage was deemed a valid marriage by the RO in October 2009. The Veteran maintains that May 1, 2008 should therefore be the effective date of the dependency allowance. The Veteran's request to add L.R. as a dependent spouse was received on August 14, 2009. This is the first date on which VA was aware of evidence of the existence of the common law marriage between the Veteran and L.R. Although the Veteran signed a VA Form 21-686 Declaration of Status of Dependents on July 29, 2009, the RO did not receive the document until at least August 14, 2009 because it was an attachment to an August 14, 2009 cover letter requesting the addition of L.R. as a dependent on the Veteran's award. 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 Veteran met this criteria on April 13, 1993. (See May 1994 RO rating decision). 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, which is defined as (i) date of the Veteran's marriage, if the evidence of the event is received within one year of the event; otherwise, (ii) the date notice is received of the dependent's existence, if the evidence is received within one year of the VA request; (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 U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b). The effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event if proof of such event is received within one year from the date of the marriage. 38 U.S.C.A. § 5110(n). In this case, dependency arose on May 1, 2008 and the first notice of this event was received at VA on or after August 14, 2009. Thus, no evidence of the common law marriage between the Veteran and L.R. was received within the one year period following the May 1, 2008 date of marriage. Second, basic eligibility to receive additional payment for a dependent spouse was established long before the Veteran's May 1, 2008 common law marriage or the claim for such benefits as they pertain to the marriage between the Veteran and L.R. In fact, the Veteran's award previously included payment for his former spouse, S.A. The Veteran and S.A. were divorced in February 2007 and additional payment based on S.A. as the dependent spouse was to be discontinued as of the February 2007 date of divorce. The latest of the dates set forth in U.S.C.A. § 5110(f); 38 C.F.R. § 3.401(b) is August 14, 2009; the date of claim, and this is the earliest date on which VA was aware of the May 1, 2008 marriage. The May 2008 date of common law marriage does not fall within a year of the August 14, 2009 claim/request for additional payment on behalf of a dependent spouse and it does not fall within one year from the date of proof of such event. Therefore, the date of claim in this case cannot be the date of the Veteran's common law marriage, and must be August 14, 2009. The earliest date that an additional award of compensation for a dependent spouse can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Accordingly, the effective date of September 1, 2009 was established for the award of additional payment based on a dependent spouse. For the foregoing reasons, there is no basis for assignment of an effective date earlier than September 1, 2009 for additional benefits for a dependent spouse pursuant to the applicable governing statute and regulations in this case. See 38 U.S.C.A. § 5110(f) and (n); 38 C.F.R. § 3.401. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Under such circumstances, the duties to notify and assist pursuant to 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013) 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 in substantiating this claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); Wensch v. Principi, 15 Vet. App. 362, 368 (2001). ORDER Entitlement to an effective date earlier than September 1, 2009 for additional dependency allowance for the Veteran's spouse, L.R., is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs