Citation Nr: 1605224 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 10-43 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to October 29, 2009 for the addition of dependent spouse, S.U., to an award. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to April 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and January 2010 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which, in relevant part, added the Veteran's spouse to the Veteran's compensation award, effective October 29, 2009. A hearing was held on October 23, 2012, in Milwaukee, Wisconsin, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. In July 2014, the Board issued a decision denying entitlement to an effective date prior to October 29, 2009 for the addition of the Veteran's dependent spouse to his award. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a December 2015 Order, the Court partially vacated the July 2014 Board decision and remanded the above matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). FINDINGS OF FACT 1. VA received VA From 21-526, the Veteran's application for disability compensation, on November 21, 2001, on which he included the date and place of his marriage to S.U., the full name and social security number of S.U., and the date and place of S.U.'s prior marriage, which he indicated ended in divorce. 2. A mark previously interpreted as a "3" appeared following a question as to the number of the Veteran's prior marriages, but no further information was included in the following section requesting additional information about his previous spouses; subsequent communication from the Veteran and his representative indicate that the notation was actually a scribble, and the Veteran did not have any prior marriages. 3. There is otherwise no evidence of record which would indicate that the Veteran had any marriage other than the one he entered into with S.U. in 1989, and the existence of this spouse was documented within the Veteran's service treatment records. CONCLUSION OF LAW The criteria for an effective date of May 1, 2001, but no earlier, have been met for the addition of dependent spouse, S.U., to the Veteran's award. 38 U.S.C.A. §§ 1115, 5110(f), 5124(a) (West 2014); 38 C.F.R. §§ 3.31, 3.50, 3.102, 3.401 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Without deciding whether the notice and development required has been satisfied with respect to the issue on appeal, the Board concludes that this duty does not preclude the Board from adjudicating the appeal of the denial of entitlement to an earlier effective date for the addition of a dependent spouse to the Veteran's award, because the Board is granting in full the benefit sought on appeal. If any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Effective Date of Additional Compensation for Dependent Spouse A veteran entitled to compensation based on disability evaluated as 30 percent or more disabling may be entitled to additional compensation for dependents. 38 U.S.C.A. § 1115(2); 38 C.F.R. § 3.4(b)(2). Generally, 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; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.204(a)(1); see also 38 C.F.R. § 3.216. However, VA may require other types of evidence of dependents in certain circumstances including where the claimant's statement on its face raises a question of its validity or the claimant's statement conflicts with other evidence of record. 38 C.F.R. § 3.204(a)(2). 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 notification of such rating action. 38 U.S.C.A. § 5110(f). 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 a veteran's award. See 38 C.F.R. § 3.401(b). The "date of claim" for additional compensation for a dependent spouse or child is the date of the veteran'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 the Department Veterans Affairs request. See 38 C.F.R. § 3.401(b)(1). If an application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation may not be paid by reason of that application. This applies to applications for increased benefits by reason of existence of a dependent. See 38 C.F.R. § 3.109. The Veteran contends that he is entitled to an effective date prior to October 29, 2009, for the payment of additional disability compensation benefits for his dependent spouse. VA received the Veteran's VA Form 21-526, Veteran's Application for Compensation and/or Pension, on November 21, 2001. On that form, the Veteran included the date and place of his marriage to S.U., the full name and social security number of S.U., and the date and place of S.U.'s prior marriage which he indicated ended in divorce. In response to a question about his prior marriages, he wrote what would come to be interpreted by the RO as the number "3", but he did not complete the section seeking further information about prior marriages. The Veteran separated from active duty on April 30, 2001. In a February 2003 rating decision, the RO granted service connection for multiple disabilities, with a combined rating of greater than 30 percent, assigning an effective date of May 1, 2001. In a March 2003 letter, VA notified the Veteran of his award of benefits. The letter stated that VA required additional information for an additional allowance for dependents, and that the Veteran must complete, sign, and return the enclosed VA Form 21-686c, Declaration of Status of Dependents, within one year from the date of the letter in order to protect entitlement to these benefits from the earliest possible date. On October 29, 2009, the RO received the Veteran's VA Form 21-686c. In a letter dated December 2009, the RO requested additional information about his prior marriage history, as he did not provide the number of times he had been married on the VA Form 21-686c that had been received on October 29, 2009, and on his original application for benefits, he indicated that he had been married three times. The RO sent the Veteran another VA Form 21-686c and also told him where he could submit his claim electronically. A December 2009 VA Form 21-0820, Report of General Information, indicates that the Veteran telephoned and "confirmed that he has only been married once", and "sent a copy of his VA form 21-526 to show that block 13a in section II is not a '3', rather a scribbled out mark." In a letter dated January 2010, the RO informed the Veteran that his award had been adjusted to include his spouse as a dependent, effective October 29, 2009, the date of receipt of the claim to add his dependents to his award. The Board finds that other than an indeterminate scribble that somewhat resembles the number "3" on his original claim for benefits, there is otherwise no evidence of record which would indicate that the Veteran was ever married prior to his marriage to S.U. in 1989. Subsequent lay statements from the Veteran and his representative clarified that the Veteran did not have any prior marriages, and that he never intended to communicate that he had. Regarding the Veteran's spouse, the Veteran did provide all of the specific information required by 38 C.F.R. § 3.204 for a statement of a claimant to be accepted as proof of marriage in the VA Form 21-526, Veteran's Application for Compensation and/or Pension, received by the RO on November 20, 2001. Specifically, he submitted written information including the date (month and year) and place of the marriage, the full name and relationship of the other person (his wife) to the claimant, and his wife's social security number. 38 C.F.R. § 3.204(a)(1). Upon further consideration, the Board finds that the confusion regarding the scribble on the Veteran's VA Form 21-526 does not change the fact that the Veteran's statement included the information required under 38 C.F.R. § 3.204(a) and further, did not on its face raise a question of the validity of the Veteran's statement, did not conflict with other evidence of record, and did not implicate fraud or misrepresentation of the relationship in question such as would trigger the requirement of additional evidence under 38 C.F.R. § 3.204(b). The subsequent lay statements indicating that the Veteran has only been married the one time have been considered, and are found to be credible. As specified in 38 U.S.C.A. § 5110(f), 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 notification of such rating action. In this case, the Veteran filed his claim for entitlement to service-connected compensation in November 2001, on which he included the necessary information to constitute proof of a dependent spouse, and service connection was awarded in a February 2003 rating decision, with a combined rating of greater than 30 percent awarded effective May 1, 2001. Therefore, as per 38 U.S.C.A. § 5110(f) and 38 C.F.R. § 3.401, the effective date for additional compensation for the Veteran's dependent spouse is appropriately set at the date the Veteran's award commenced, May 1, 2001, the day following his separation from service. As all of the other potential dates specified under 38 C.F.R. § 3.401(b) are prior to May 1, 2001, and are also prior to the Veteran's separation from active service and attainment of status as a "veteran," an award of additional compensation for the addition of the Veteran's dependent spouse, S.U., is not warranted before May 1, 2001. ORDER An effective date of May 1, 2001, but no earlier, for the award of additional benefits based on the addition of dependent spouse, S.U., is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs