Citation Nr: 1603741 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-09 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than April 1, 2011, for the adding of the appellant's spouse for purposes of receiving additional VA benefits. REPRESENTATION Appellant represented by: Michael R. Viterna, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active duty from December 1975 to May 1977, and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 letter decision of the Detroit, Michigan, Regional Office (RO), of the Department of Veterans Affairs (VA). Following his notice that he was appealing his claim to the Board, the appellant proffered testimony before the undersigned at the RO in January 2015. A transcript of that hearing was prepared and has been included in the claims folder for review. FINDINGS OF FACT 1. The appellant married DST in August 1975. 2. The appellant was awarded additional compensation benefits based on his marriage to DST and his two children. 3. The appellant obtained a divorce from DST in January 2005. 4. The appellant notified the RO of his divorce from DST at the end of January 2005. 5. The appellant married KAT in March 2005. 6. The appellant notified the RO of his second marriage shortly after that marriage. 7. The appellant continued to receive additional compensation benefits on behalf of a dependent spouse subsequent to his divorce from DST. 8. The RO retroactively terminated payment of additional benefits on behalf of DST, effective April 1, 2011, but did grant additional compensation benefits on behalf of a dependent spouse effective April 1, 2011. CONCLUSION OF LAW An effective date of April 1, 2005, for the assignment of additional compensation for a dependent spouse is warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue on appeal involves the inclusion of the appellant's second wife, KAT, as a dependent for VA compensation purposes. The record reflects that the appellant married DST in August 1975. He divorced DST on January [redacted], 2005, and subsequently married KAT on March [redacted], 2005. While the appellant was married to DST, he received additional compensation for a dependent spouse. The RO contacted the appellant early in 2011. At that time, the RO asked the appellant to confirm the name of the person to whom he was married. The appellant responded and noted that he had married KAT in March 2005. Upon review of the file, the RO informed the appellant that he should not have received additional compensation for his spouse from January [redacted], 2005, to the (then) present. The RO indicated that because of the lack of notification of his divorce, the appellant had been paid benefits to which he was not entitled, and that an overpayment of benefits had occurred. The appellant was notified of that determination and he has appealed. He has claimed that he did, in fact, notify the RO of the both his divorce and subsequent marriage, and that an overpayment only occurred for the period extending from January [redacted], 2005, to March [redacted], 2005. He has asked for an earlier effective date for the recognition of his marriage to KAT. The RO has denied his request and he has appealed to the Board for review. Since submitting his notice of disagreement, the appellant has submitted copies of two letters he avers were sent to the RO in 2005. The first letter, from January 2005, indicated that the appellant had divorced, and the second letter, dated March 2005, reported that the appellant had remarried. In addition to his written statements along with the two letters, the appellant also provided testimony before the Board. During that hearing, the appellant credibly testified concerning his notification of the RO concerning his divorce and remarriage. The effective date of the award of any benefit or increase by reason of marriage or the birth/adoption of a child shall be the date of that event if proof is received by VA within a year from the date of marriage, birth or adoption. 38 U.S.C.A. § 5110(n) (West 2014). Regarding additional compensation for dependents, 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 a 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) (2015). The "date of claim" for additional compensation for dependents is the date of the appellant'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 (f), (n) (West 2014); 38 C.F.R. § 3.401(b)(1) (2015). The Board has reviewed all the evidence of record. As reported, the appellant provided testimony before the Board concerning when and how he notified the VA of his divorce and his subsequent remarriage. The RO has indicated that the agency of original jurisdiction did not receive either one of these letters. However, further review of the file reveals that at the time of the divorce and remarriage, the appellant was also seeking additional VA benefits, and his file was either at the RO, the Board, or the United States Court of Appeals for Veterans Claims (Court). It is very possible that the letters were forwarded to any of the locations but they were not incorporated into the claims file. Additionally, the Board notes that when the appellant provided testimony before the Board, his testimony was convincing and credible. In other words, based on his testimony, the Board finds that his statements concerning when he sent in the notification letters very believable and adds to the weight of the evidence. The Board notes that the appellant was married to his first spouse until January 2005. He remarried in March 2005. The Board finds that the appellant did, in fact, inform VA of his divorce and remarriage. Such notification was within two months of his divorce and remarriage. As such, the effective date for the addition of the appellant's second wife as a dependent (for compensation purposes) is April 1, 2005, the first day of the month following submission of the needed marriage information to the RO. The appellant's claim is therefore granted. The record reflects that VA has met any duties to notify or assist the Veteran in this appeal pursuant to 38 U.S.C.A. §§ 5103(a) and 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). ORDER Entitlement to an effective date of April 1, 2005, for the award of additional dependent's compensation, is granted. ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs