Citation Nr: 1529414 Decision Date: 07/09/15 Archive Date: 07/16/15 DOCKET NO. 13-30 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an earlier effective date for the award of additional compensation payable for a dependent. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran and his representative appeared before the undersigned in a June 2015 hearing. A hearing transcript was associated with the claims file and reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT VA notified the Veteran of his entitlement to dependent compensation in February 1989, but he did not provide updated information on his marital status within a year of that notice. He filed a claim for dependent compensation on May 31, 2012. CONCLUSION OF LAW The criteria for an earlier effective date for the award of dependent compensation have not been met. 38 U.S.C.A. §§ 1115 , 5101, 5110 (West 2014); 38 C.F.R. §§ 3.4 , 3.31, 3.401 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). However, the U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The Court recognized that enactment of the VCAA does not affect matters on appeal when the questions are determined as a matter of law. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). For the claim decided herein, the VCAA does not apply, because the facts of the claim are undisputed and it is denied on the basis of the controlling law and regulations alone, which render the appellant ineligible for the claimed benefits. Earlier Effective Date The Veteran asserts that he was entitled to dependent compensation for his wife prior to May 31, 2012 and should have an earlier effective date. Any veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents, including a spouse and each child. 38 U.S.C.A. § 1115(1)(A) (West 2014); 38 C.F.R. §3.4(b)(2). The effective date for additional compensation for a dependent will be the latest of the following: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) date of commencement of veteran's award. 38 U.S.C.A. § 5110(f)(emphasis added); 38 C.F.R. § 3.401(b). The date of claim is: (i) date of a veteran's marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise (ii) date notice is received of the dependent's existence, if evidence is received within one year of VA's request. Id. The earliest possible effective date for additional compensation for dependents shall be the same date as the decision giving rise to such entitlement, provided that proof of dependent status is submitted within one year of notice of that decision. Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009). VA will accept, for purposes 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 the social security number of the other person. 38 U.S.C.A. § 5124; 38 C.F.R. § 3.204. After review of the case, the Board finds that the criteria for an effective date earlier than May 31, 2012 for the grant of dependent compensation have not been met. See 38 U.S.C.A. § 5110. The Veteran first became eligible for dependent compensation when his service-connected disability rating was increased to 30 percent, effective November 23, 1988. See January 1989 rating decision. In February 1989, VA sent the Veteran a letter notifying him that he may be eligible for additional compensation and requesting he provide a declaration of marital status and other information. The Veteran did not respond to this request within one year. He did not provide information confirming his marital status or claim dependent compensation until May 31, 2012. Therefore, the date of claim for dependent compensation is May 31, 2012. In that report of contact, the Veteran provided all the needed information: spouse's name, date and place of the marriage, relationship to the Veteran, and her social security number. See 38 C.F.R. § 3.204. Based on the statute, the May 31, 2012 date of claim is the appropriate effective date for the grant of dependent compensation, as the latest of the possible dates. See 38 U.S.C.A. § 5110(f). The Veteran contends that his October 1985 application for increased rating included all the information about his marriage and dependency compensation should be awarded on the effective date of the qualifying disability rating, or November 23, 1988. The October 1985 application for increased rating included the date and place of marriage and the Veteran's wife's name but does not appear to include her social security number. More importantly, the relevant case law makes clear that a veteran must submit updated proof of dependents within one year from the date of notification of a qualifying rating. Section 5110(f) pertains to the effective date for additional compensation for dependents and provides that an award of additional compensation for dependents based on the establishment of a qualifying disability rating 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 notification of such rating action. 38 U.S.C. § 5110; Sharp, 23 Vet. App. at 271-73. Like in this case, the veteran in Sharp was notified of his right to additional compensation for dependents after VA granted a qualifying rating. The Court of Appeals for Veterans Claims held that the veteran needed to submit updated information about his dependents to receive the compensation. See Sharp, 23 Vet. App. at 271-73, quoting 38 U.S.C. § 1115. Here, the Veteran failed to submit updated information about his wife within one year of the February 1989 notice of entitlement to dependent compensation. As such, he did not meet the requirements to receive dependent compensation at the time of his increased rating. See 38 U.S.C. § 1115; Sharp, 23 Vet. App. at 271-73. Instead, the appropriate effective date for dependent compensation is May 31, 2012, the date of his claim for such compensation. See 38 U.S.C. § 5110(f). The Veteran was afforded the benefit of the doubt in compliance with 38 C.F.R. § 3.102, but his claim for an earlier effective date for dependent compensation is barred as a matter of law. See 38 U.S.C. §§ 1115, 5110. ORDER An effective date prior to May 31, 2012 for the dependent compensation for the Veteran's spouse is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs