Citation Nr: 1529559 Decision Date: 07/10/15 Archive Date: 07/16/15 DOCKET NO. 10-30 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether an overpayment of compensation benefits in the calculated amount of $3,465 was properly created. 2. Entitlement to an earlier effective date of July 20, 2007, for additional compensation on account of a dependent spouse, D, and dependent stepchildren, A and T. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) decision of December 2009. The Veteran challenged the validity of the overpayment in the amount of $3,465 that resulted from the retroactive decrease in the Veteran's VA compensation benefits for the period from May 2006 to December 2009. In addition, he disagreed with the effective date of October 9, 2009, assigned for the addition of his spouse, B, and stepchildren A and T to his award as dependents. FINDINGS OF FACT 1. As pertinent to this appeal, the Veteran was in receipt of compensation benefits in an amount which included additional compensation for his spouse, D, for the period from May 2006 to December 2009. 2. The Veteran was divorced from his wife, D, in March 2006. 3. The Veteran married B in July 2007. 4. VA was not notified of the Veteran's divorce from D or marriage to B until October 9, 2009. 5. VA was notified of the existence of the Veteran's child, C, in October 2009, within one year of his birth on December 10, 2008. 6. VA was notified of the existence of the Veteran's stepchildren A and T on October 9, 2009. CONCLUSIONS OF LAW 1. The overpayment of VA compensation benefits in the amount of $3,465 was properly created. 38 U.S.C.A. §§ 1115, 5110, 5112 (West 2014); 38 C.F.R. §§ 3.4, 3.401, 3.501 (2014). 2. The criteria for an effective date earlier than October 9, 2009, for the addition of the Veteran's spouse, B, and stepchildren A and T to his award as dependents have not been met. 38 U.S.C.A. §§ 1115, 5110 (West 2014); 38 C.F.R. §§ 3.4, 3.401 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duties to notify and assist claimants. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). In this case, however, the essential facts are not in dispute; the case rests on the interpretation and application of the relevant law. Hence, the duties to notify and assist are not applicable to the claim. Beverly v. Nicholson, 19 Vet. App. 394 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002). The Veteran was originally granted entitlement to service-connected compensation benefits at the 70 percent rate by a rating decision dated in April 2006. In a letter dated in May 2006, he was informed of his award of service connection, and notified of various conditions concerning his award of compensation benefits, including an explanation of how his military retirement pay would be affected by the amount of the VA compensation. He was informed, in a separate paragraph, that "[w]e are paying you as a veteran with one dependent. Your payment includes an additional amount for your spouse, [D]. Let us know right away if there is any change in your marital status." (Emphasis in original.) On October 9, 2009, a Declaration of Status of Dependents was received from the Veteran. In this document, he stated that he had been divorced from D in March 2006, and married to B in July 2007. He also reported 3 dependent children, consisting of his biological child, C, who was born December 10, 2008, and 2 stepchildren born in 2000 and 2001. The law provides that additional compensation may be paid to a Veteran on account of a dependent spouse and/or children, if the Veteran has service-connected disability rated 30 percent or more. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4(b)(2). The effective date for additional compensation for such a dependent spouse is the latest the following dates: * Date of the Veteran's marriage or birth of a child, if the evidence of the event is received within one year of the event; * Date notice of the dependent's existence is received; * Date the dependency arises; * Effective date of the qualifying disability rating if evidence of dependency is received within 1 year of notification of the rating action. 38 C.F.R. § 3.401(b); see 38 U.S.C.A. § 5110(f). Payment commences the beginning of the month after the effective date. 38 U.S.C.A. § 5111. The effective date of a reduction of compensation due to divorce will be last day of the month in which the divorce occurred. 38 U.S.C.A. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). The Veteran contends that the effective date of the addition of his wife B and two stepchildren, T and A, should be the date if his marriage to B, July 20, 2007. He states that the overpayment should only encompass the period from April 1, 2006, after his divorce from D, to July 20, 2007, the date of his marriage to B. However, the law is clear on this matter: the Veteran is not entitled to benefits on behalf of the new spouse, B, until VA is notified of the marriage, but his entitlement to benefits for the previous spouse, D, ceased with the divorce, regardless of when VA was informed. Additionally, the Veteran is not entitled to benefits on behalf of his stepchildren until the later of the date of his marriage to B (i.e., the date the dependency arose), or the date VA was notified of the existence of the dependents. Since VA was not notified of the existence of the dependent stepchildren until October 2009, the Veteran is not entitled to additional compensation for them as dependent children until October 2009. In contrast, concerning the Veteran's son, C, because notice of his existence was received within one year of his birth, the Veteran was properly granted entitlement to additional compensation effective the date of his birth. The Veteran also contends that VA failed to notify him of the requirements of 38 C.F.R. § 3.401 at the time he was granted service-connected compensation benefits in 2006. He feels that this was particularly unjust in light of his service-connected mental disability, rated 70 percent disabling at that time. However, the May 2006 letter from VA, informing him of his award of service connection, explicitly told him, in a separate paragraph on the first page of the letter: "We are paying you as a veteran with one dependent. Your payment includes an additional amount for your spouse, [D]. Let us know right away if there is any change in your marital status." Notably, the Veteran's first wife, D, was specifically mentioned by name. At this time, in May 2006, according to the Veteran's own statements, he was already divorced from D, and he did not marry B until more than a year later. In other words, by the time he received this letter, he already knew that his payment included an additional amount for a spouse to whom he was no longer married. The fact that 38 C.F.R. § 3.401 was not specifically cited in the notice letter cannot be said to excuse his failure to notify VA of the change in his marital status. The Veteran argues, in essence, that for the period from July 20, 2007, to October 9, 2009, he was in fact married and had a dependent spouse, and, therefore, he should not be denied compensation for a dependent spouse simply because a different spouse was on record as his wife. The fact of a dependent spouse is acknowledged. However, as discussed above, the law is clear on this point--the Veteran is not entitled to benefits on behalf of the new spouse, B, until VA is notified of the marriage, but his entitlement to benefits for the previous spouse, D, ceased with the divorce, regardless of when VA was informed. The law pertaining to VA benefits requires not only the existence of a dependent spouse, but that VA receives proof of the relationship; both of these requirements must be met before entitlement is established. See 38 U.S.C.A. § 5112(f); 38 C.F.R. § 3.401. The argument of the Veteran is essentially equitable in nature. The Secretary of VA, but not the Board, has discretionary power to provide equitable relief, and the appellant is free to apply to the Secretary and request that he exercise his discretionary authority to grant his claim on an equitable basis. See 38 U.S.C.A. § 503 (West 2014); 38 C.F.R. § 2.7 (2014); see also Darrow v. Derwinski, 2 Vet. App. 303, 304 -06 (1992); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey, supra. Authority to award equitable relief under 38 U.S.C.A. § 503(a) (West 2014) is committed to the sole discretion of the Secretary, and that the Board is without jurisdiction to consider matters which are solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). In sum, notwithstanding any extenuating circumstances or claims of fairness, the Board must apply the relevant law. Congress did not enact any exceptions to the above-discussed legal provisions which would permit a grant of the requested benefit, and in this case, there is no legal basis on which the appellant's claim can be granted. As the law and not the evidence is dispositive in this case, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Hence, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER An overpayment in the calculated amount of $3,465 was properly created; the appeal is denied. An earlier effective date of July 20, 2007, for the addition of payment for a spouse, B, and stepchildren A and T to the Veteran's compensation award is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs