Citation Nr: 1608795 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 06-31 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an earlier effective date prior to January 17, 2006 for additional compensation for the Veteran's dependent spouse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1982 to February 1985 and February 1987 to June 2000. This appeal to the Board of Veterans' Appeals (Board) arises from a February 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office in Waco, Texas which granted additional service connected compensation for the Veteran's dependent spouse effective January 17, 2006. Jurisdiction was subsequently transferred to the Atlanta, Georgia RO. The Board most recently remanded this matter in August 2012 in order to associate copies of the Chapter 35 file with the claims folder. Thereafter, the RO issued an April 2015 supplemental statement of the case (SSOC) wherein it asserted that it obtained the Chapter 35 file and included photocopies of the file with the claims folder. The case was then sent back to the Board. The Veteran's claims file is entirely electronic, using "Virtual VA" and the "Veterans Benefits Management Systems" (VBMS) databases. FINDINGS OF FACT 1. The appellant divorced in June 2000 and remarried her spouse on May [redacted], 2002. 2. In March 2002, the appellant was awarded increased compensation for service-connected disability; effective June 13, 2000, the appellant had a combined 100 percent disability evaluation. 3. The RO received notice on January 11, 2006, that the appellant filed for Chapter 35 benefits for her dependent spouse and, thereafter, requested verifying information. 4. On February 2, 2006, VA received a facsimile of the appellant's marriage certificate to her spouse. CONCLUSION OF LAW The criteria for an effective date of January 11, 2006, but not earlier, for a grant of additional compensation benefits for the Veteran's spouse have been met. 38 U.S.C.A. §§ 1155, 5110, 5111 (West 2014); 38 C.F.R. §§ 3.31, 3.204, 3.205, 3.400, 3.401 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain. Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, the Veteran is challenging the effective date assigned in the February 2006 rating decision that granted additional dependency allowance for a spouse. Pursuant to 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement (NOD) in response to a decision on a claim, the agency of original jurisdiction must take development or review it deems proper under applicable regulations and issue of statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. If VA receive a NOD in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a SOC if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2015). Following receipt of the Veteran's March 2006 NOD regarding the assignment of the effective date of the Veteran's additional compensation benefit for her spouse, the RO issued a June 2006 SOC that denied the assignment of an effective date earlier than February 1, 2006. Included in the June 2006 SOC was an explanation of the information and evidence that the Veteran needed to substantiate her claim for an earlier effective date. In addition, the SOC discussed why the effective date of the award for additional dependency allowance for her spouse was not set as the date that she married her husband. The Board also notes that all of the pertinent evidence for deciding this claim is already of record. Accordingly, further development regarding the provision of notice would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board thus finds that VA has satisfied its obligation to notify. In the Board's August 2012 remand, it directed the RO to associate copies of the Chapter 35 file with the claims folder. Thereafter, the RO issued a SSOC wherein it asserted that it obtained the Chapter 35 file and included photocopies of the file with the claims folder. That SSOC continued the denial of the Veteran's claim of entitlement to an effective date earlier than January 17, 2006 for additional spousal compensation. Since the requested benefits were not granted, the RO returned the case to the Board as directed to do in the Board's August 2012 remand. A review of the claims folder, which is entirely electronic, reveals a series of scanned documents have been included in the electronic folder that are all dated January 11, 2006, the date of the Veteran's paper Application for Dependents' Educational Assistance. These documents are labeled as copies of the Chapter 35 file that the RO was directed to obtain and include with the claims folder. Accordingly, as copies of the Chapter 35 file have been associated with the claims folder as the Board directed in its August 2012 remand, the Board finds that the RO substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D 'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" as opposed to strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As for VA's duty to assist, the Board notes that the Veteran has not alleged and the record does not show that there is outstanding evidence relevant to the issue of entitlement to an earlier effective date for the grant of additional dependency allowance for a spouse. All of the pertinent information is of record. As such, the Board finds that VA has fulfilled its duty to assist. Accordingly, there is no prejudice to the Veteran in proceeding to consider his claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Legal Criteria and Analysis The Veteran contends that an effective date of May [redacted], 3002 for the award of dependent benefits for her spouse is warranted as that is the date she married her husband and thus the date she believes she first became eligible for an additional dependency allowance. In an April 2012 letter, the Veteran asserted that she submitted a copy of her marriage, divorce decree and remarriage certificate to the Waco, Texas VA office as soon as she obtained them following her remarriage to her spouse on May [redacted], 2002. An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 C.F.R. § 3.4(b)(2) (2013). 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)(2013). Additional compensation for a new dependent will be effective 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. 38 U.S.C.A. § 5110(f), (g) and (n) (West 2014); 38 C.F.R. § 3.401(b) (2015). The "date of claim" for additional compensation for dependents is the date of a veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date is set at the date when the notice is received of the dependent's existence. 38 C.F.R. § 3.401(b)(1). The earliest that the additional award of compensation for a dependent spouse can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31; see also Gold v. Brown, 7 Vet. App. 315 (1995). VA will accept, for the purpose 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. 38 U.S.C.A. § 5124(a), (b) (West 2014); 38 C.F.R. § 3.2014(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 Veteran submitted an original claim in June 2000 and she was granted service connection for Crohn's Disease, idiopathic dilated cardiomyopathy with hypertension, migraine headaches, asthma, polyneuropathy of upper extremities, polyneuropathy of bilateral lower extremities, nonallergic rhinitis, anal fistula, scar, left wrist, status post ganglion cyst excision, residual scar, paparotomy and tubal ligation, bilateral knee bone atrophy/infarcts due to amnesia and umbilical hernia, for a combined rating of 90 percent effective June 13, 2000, the day following the Veteran's separation from service. The RO then notified the Veteran in an August 24, 2000 letter that her compensation had been adjusted to reflect her divorce from her ex-spouse on June 21, 2000. The RO also indicated that she must inform VA of any dependency changes. Following that, the RO, in an October 2000 letter, notified the appellant that individual unemployability and Chapter 35 Dependent Education Benefits had been granted. The Veteran filed a claim for increased disability compensation in April 2001. Before the RO made a decision on the Veteran's claim, VA treatment records from the Temple, Texas VA medical center dated in January and March 2002 reflect the fact that the Veteran had informed VA that she was planning on remarrying her ex-spouse in May 2002. Thereafter, in a March 2002 rating decision, the RO granted the Veteran's claim for increased compensation with a combined 100 percent disability evaluation effective June 13, 2000. The RO notified the Veteran of its decision in a May 21, 2002 letter. In that letter, the RO informed the Veteran that she may be eligible for additional benefits due to dependents. The next time that the RO received any correspondence related to the Veteran was in the form of a January 11, 2006 application for Chapter 35 benefits from the appellant's spouse, which prompted a January 17, 2006 electronic correspondence reflecting the January 11, 2006 application. However, because the Veteran's file did not reflect that she was married, the RO requested from the Veteran a verification of her marriage to her spouse. The Veteran subsequently submitted a facsimile of her marriage certificate on February 2, 2006, which showed that the Veteran remarried her spouse on May [redacted], 2002. Internal VA electronic correspondence dated February 3, 2006 indicates that the RO was concerned about the status of the Veteran's marriage because the Veteran and her spouse apparently lived in different states. Accordingly, as reflected by a February 7, 2006 Report of Contact, the RO called the Veteran and had her confirm that she remarried her spouse on May [redacted], 2002 and that there were no other marriages for either herself or her spouse in between the June 21, 2000 divorce and the remarriage. Thereafter, via a February 8, 2006 letter, the RO informed the Veteran that her claim for additional spousal compensation was received February 7, 2006, and that the award amount adjustment would commence beginning on March 1, 2006, with an effective date of February 1, 2006. The Veteran filed a notice of disagreement (NOD) in March 2006 as to the effective date for the grant of additional spousal compensation for her spouse. In the NOD, she contended that the effective date should be set as the date of her remarriage to her spouse, May [redacted], 2002. Following a July 2006 statement of the case (SOC) that maintained the effective date of February 1, 2006, the Veteran asserted in her September 2006 substantive appeal that she submitted a copy of her May [redacted], 2002 marriage certificate to the VA hospital in Temple, Texas "a couple of months after" she remarried her spouse. In a January 2010 decision and remand, the Board found that the Veteran was entitled to an effective date of January 17, 2006 for her additional spousal compensation, as this was the date that the electronic correspondence was received by VA. However, the Board remanded the case for further development in order to determine whether an effective date prior to January 17, 2006 was warranted. Specifically, the Board directed the RO to obtain copies of the Chapter 35 file and associate it with the file, as well as ascertain what filing by the Veteran prompted the January 17, 2006 electronic correspondence. In response to the Board remand, the RO obtained copies of the Veteran's Chapter 35 file and her Application for Survivors and Dependent's Educational Assistance Application, which was received January 11, 2006. After obtaining these documents, the RO issued a February 2012 SSOC denying entitlement to an effective date earlier than January 17, 2006. The RO then returned the case to the Board. In an August 2012 remand, the Board stated that although the RO noted that it had obtained a copy of the Veteran's Chapter 35 file and reviewed it before issuing the February 2012 SSOC, no copy of the Chapter 35 file was included with the claims folder when the case was certified to the Board for its review. Accordingly, the Board remanded the matter to again ensure that a copy of the Chapter 35 file was associated with the claims folder. After again obtaining the Chapter 35 file and ensuring that complete photocopies of the Chapter 35 file were included with the claims folder, the RO issued another SSOC again denying entitlement to an effective date earlier than January 17, 2006. The RO then returned the case to the Board. After considering all of the evidence before it, the Board finds that the Veteran is entitled to an effective date of January 11, 2006 but not earlier for her claim of additional dependent compensation for her spouse. The Board has reviewed the documents contained in the Chapter 35 file and included these documents in its review of the entire claims folder. Nothing in the Chapter 35 file or in the greater claims folder reflects that VA was informed of the Veteran's remarriage to her spouse prior to January 11, 2006, the date of the original claim for additional spousal compensation. Pursuant to 38 C.F.R. § 3.401(b)(1), the date of the claim, and therefore, the effective date in this instance, is the date of a veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date of the claim is the date that notice is received of the dependent's existence. Here, there is no record that the Veteran informed VA of her remarriage to her spouse within a year of the marriage; therefore, the effective date is the day that the RO was first notified of the marriage, January 11, 2006, and the first date that the Veteran is entitled to payment is February 1, 2006. 38 C.F.R. § 3.31. The Board is cognizant that the Veteran has asserted that she submitted a copy of the May [redacted], 2002 marriage certificate to the Temple, Texas VA hospital within one year of the remarriage. Unfortunately, the claims folder does not reflect that a copy of the marriage certificate was submitted within a year of the May [redacted], 2002 remarriage. The Board therefore finds that the preponderance of the evidence supports a determination that VA did not receive a copy of the May [redacted], 2002 marriage certificate prior to its submission by the Veteran following the RO's attempts at verifying the remarriage in February 2006. Accordingly, there is no legal basis for assigning an effective date earlier than January 11, 2006 for additional dependency allowance for a spouse. ORDER Entitlement to an effective date of January 11, 2006, but not earlier, for additional compensation benefits for a dependent spouse is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs