Citation Nr: 1410149 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-44 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than September 1, 2008, for the grant of additional compensation for the Veteran's dependent spouse. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from December 1975 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2009 determination of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2011, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing is associated with the Veteran's claims file. FINDING OF FACT The Veteran submitted sufficient proof of his dependent spouse's existence alongside his April 2002 claim; the date of commencement for the award of the Veteran's entitlement to service connection is September 1, 2002, the earliest possible effective date for the grant of additional compensation for the Veteran's dependent spouse. CONCLUSION OF LAW The criteria for an effective date of September 1, 2002, for the grant of additional compensation for the Veteran's dependent spouse have been met. 38 U.S.C.A. §§ 1115, 5110(f) (West 2002); 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.401 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Merits The Veteran contends that he is entitled to an earlier effective date for the award of additional compensation for his spouse because in his initial claim for benefits he informed VA that he was married to his spouse at that time. See April 2002 Veteran's Application for Compensation and/or Pension. The law and regulation governing the effective date of increased compensation due to dependency is found at 38 U.S.C.A. § 5110(f) and 38 C.F.R. § 3.401(b). In this regard, an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose shall be payable from the effective date of such rating, but only if proof of dependents is received within one year from the date of such rating. 38 U.S.C.A. § 5110(f). Veterans having a 30 percent or more service-connected disability rating may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). Regarding additional compensation for dependents, the effective date will be the latest of the following dates: (1) date of claim; this term means (listed in their order of applicability): (i) date of Veteran's marriage, if the evidence is received within 1 year of the event; otherwise; (ii) date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence is received within 1 year of notification of such rating action; and (4) date of commencement of Veteran's award. 38 C.F.R. § 3.401(b). The earliest date for commencement of 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. Additionally, the Board observes that, for the purpose of determining entitlement to additional compensation for dependents, VA will accept 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. In addition, a claimant must provide the Social Security number of any dependent on whose behalf she is seeking benefits. 38 U.S.C.A. § 5124(a), (b); 38 C.F.R. § 3.204(a)(1). VA shall require corroborating evidence to verify a marriage where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 U.S.C.A. § 5124(c); 38 C.F.R. § 3.204(a)(2). Failure to furnish the higher class of evidence, however, does not preclude the acceptance of a lower class if the evidence furnished is sufficient to prove the point involved. 38 C.F.R. § 3.204(b). The relevant facts largely are not in dispute. The Veteran submitted a claim for benefits in April 2002. In that claim, the Veteran listed his spouse as a dependent and specified the date and place of their marriage. The Veteran also provided his spouse's birthdate and her Social Security number. Furthermore in the claim, the Veteran also stated that his spouse was twice divorced and listed the name of one of his spouse's former husbands. By way of a July 2002 rating decision, the Veteran was awarded benefits. The Veteran was assigned a combined 60 percent disability rating, effective August 1, 2002. His date of commencement was September 1, 2002. The Veteran was informed by letter, in September 2002, that his claim for dependents was not complete as the RO needed evidence that his spouse's previous marriages were legally ended. No such evidence was received by VA in response to the September 2002 letter. In July 2008, the Veteran, after realizing that he had not been receiving dependent benefits for his spouse, alerted VA to that fact. See July 2008 Form 21-4138. The Veteran completed a Form 21-686C, detailing his spouse's previous divorces, including the names of whom she married and the dates and places of her marriages and divorces. In October 2009, VA informed the Veteran that he was awarded dependent benefits for his spouse, effective September 1, 2008. In December 2009, the Veteran noted his disagreement with that determination and the instant appeal followed. Initially, the Board notes that the Veteran is entitled to dependent's benefits as he is in receipt of a disability rating in excess of 30 percent. Further, the Veteran provided sufficient evidence of the existence of his dependent spouse by way of his April 2002 claim. There, he provided the date (both month and year) and the place of his marriage. He also provided his spouse's Social Security number. This information is sufficient to fulfill the requirements of 38 C.F.R. § 3.204(a)(1). The remaining question is whether the Veteran was required to provide corroborating evidence to prove the existence of that marriage under 38 C.F.R. § 3.204(a)(2). Under that section, as stated above, corroborating evidence is required where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 U.S.C.A. § 5124(c); 38 C.F.R. § 3.204(a)(2). The evidence shows that the Veteran is a resident of a state. Additionally, the Veteran's statement that he is married to his spouse does not raise a question as to the validity of that marriage. The mere fact that his wife was divorced twice prior to their marriage, itself, does not call their marriage's validity into question. Moreover, there is no reasonable indication that the Veteran's statement raised the possibility that he was attempting to defraud or misrepresent his relationship. Indeed, despite not giving the complete details of his wife's prior marriages, throughout service the Veteran stated that he was married. It is not as if the Veteran recently, for the purpose of filing a claim for benefits, began asserting that he was married. To that end, the Veteran credibly testified that he did not provide the complete details of his wife's prior divorces because he was not sure of the complete details of those events. See November 2011 Hearing Transcript. As such, the Board finds that the Veteran was not required to submit corroborating evidence showing the existence of his marriage under 38 C.F.R. § 3.204(a)(2). As such, sufficient proof of his marriage was submitted when he filed his claim for benefits in April 2002. See of 38 C.F.R. § 3.204(a)(1). Having determined that the Veteran submitted sufficient proof of his marriage at the time his claim was filed, the Board must next consider the appropriate effective date for additional compensation for the Veteran's dependent spouse. Again, as set out above, the appropriate effective date is the latest of the following: (1) date of claim; this term means (listed in their order of applicability): (i) date of Veteran's marriage, if the evidence is received within 1 year of the event; otherwise; (ii) date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence is received within 1 year of notification of such rating action; and (4) date of commencement of Veteran's award. 38 C.F.R. § 3.401(b). Under subsection (1), the date of claim is the date that the Veteran filed his claim, April 29, 2002. That is because evidence of the Veteran's marriage was not received within one year of his marriage. See 38 C.F.R. § 3.401(b)(1)(i). Instead, the first evidence submitted showing his marriage was in his claim for benefits, as discussed above. See 38 C.F.R. § 3.401(b)(1)(ii). The date of dependency is the date on which the Veteran was married, November 9, 1979. See 38 C.F.R. § 3.401(b)(2). The effective date for the Veteran's award of entitlement to service connection is August 1, 2002. See 38 C.F.R. § 3.401(b)(3). Finally, the date of commencement of the Veteran's award is September 1, 2002. This is because that is the start of the month after the effective date of February 22, 2010. See 38 C.F.R. §§ 3.31, 3.401(b)(4). As such, the latest date of those immediately above is September 1, 2002. Under the regulation, that is the effective date for the award of additional compensation benefits for a dependent spouse. 38 C.F.R. § 3.401(b). ORDER Entitlement to an award of additional compensation benefits for a dependent spouse is granted effective September 1, 2002, subject to the laws and regulations applicable to the payment of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs