Citation Nr: 1644759 Decision Date: 11/29/16 Archive Date: 12/09/16 DOCKET NO. 14-06 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an effective date prior to September 1, 2012, for the addition of the Veteran's spouse and child to his award of Department of Veterans Affairs disability compensation benefits. 2. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 3. Entitlement to an increased rating for voiding dysfunction as a residual of prostate cancer, currently rated as 60 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran had active military service from September 1965 to July 1967. This matter comes to the Board of Veterans' Appeals (Board) from September 2005 and September 2013 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California and Reno, Nevada, respectively. Jurisdiction of the claims resides with the Reno, Nevada RO. The September 2005 rating decision granted service connection for PTSD and assigned a 30 percent rating and denied an increased rating for the voiding dysfunction. This was then followed by the issuance of a statement of the case in April 2007 and timely substantive appeal in May 2007. In the September 2013 decision, the Veteran was granted additional benefits for his spouse and child, effective September 1, 2012. In an April 2007 rating decision, the Albuquerque, New Mexico RO granted a 50 percent rating for PTSD effective September 26, 2006. Applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that a claim remains in controversy where less than the maximum benefit available is awarded. A.B. v. Brown, 6 Vet. App. 35 (1993). Because the maximum rating available was not granted, the issue remained in appellate status. The Veteran was advised in correspondence dated in March 2015 that he was scheduled for a May 2015 Board hearing. However, the Veteran withdrew his request for a hearing in correspondence dated in April 2015. The issues of entitlement to an increased rating for PTSD and voiding dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On August 17, 2012, the Veteran contacted the Nashville, Tennessee RO and indicated that his ex-wife Yolanda should be removed from his VA disability award. He also requested that his new wife and child be added to his award. He was advised that he should submit a VA Form 21-686c, "Declaration of Status of Dependents" within one year of the date of contact to protect the date of his claim. 2. The Veteran submitted a VA Form 21-686c which was received at the Reno, Nevada RO in November 2012. 3. In a letter from VA, dated in September 2013, the Veteran was advised that his current wife and child were added to his VA disability award effective September 1, 2012, the first day of the month following the date he contacted VA to advise of his current marital status. CONCLUSION OF LAW The criteria for an effective date earlier than September 1, 2012, for the addition of the Veteran's spouse and child as his dependents, have not been met. 38 U.S.C.A. §§ 1115, 5110, 5111(a) (West 2014); 38 C.F.R. §§ 3.3, 3.4, 3.31, 3.204, 3.217, 3.400, 3.401 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Effective Date For historical purposes, the Veteran's spouse and child were added to his VA disability benefits award effective September 1, 2012, the first day of the month following the date he contacted VA to advise of his current marital status. The Veteran disagreed with the effective date of the addition of his dependents. At that time, service connection was in effect for voiding dysfunction as a residual of prostate cancer rated as 60 percent disabling, PTSD rated as 50 percent disabling, and malaria rated as noncompensably disabling. Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C.A. § 1115; 38 C.F.R. § 3.4 (b)(2). When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the 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). The "date of claim" for additional compensation for dependents 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 notification of such rating action. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.401. The earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. Under 38 U.S.C.A. § 5101 (a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151 (a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C.A. § 501. Any person who applies for or is in receipt of any compensation or pension benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the social security number of any dependent or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. A person is not required to furnish the Secretary with a social security number for any person to whom a social security number has not been assigned. 38 U.S.C.A. § 5101 (c)(1). If a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C.A. § 5102 (b). If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5102 (c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C.A. § 5107 (a). 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. As noted, the Veteran contacted VA on August 17, 2012, and advised that he was divorced from his former spouse, Yolanda, and he had remarried and had a child. He submitted a VA Form 21-686c which was received in November 2012. On the form, the Veteran indicated that he was divorced from Yolanda in June 2008, and remarried Reavadee in October 2010. He also indicated that his daughter Brandi was born in June 2010. He also submitted copies of his divorce decree, marriage license, and his daughter's birth certificate. In a September 2013 letter from VA, the Veteran was advised that his spouse Reavadee and child Brandi had been added to his VA disability benefits award effective September 1, 2012, the first day of the month following his contact with VA advising of his current status with regard to his dependents. In correspondence dated in November 2013, the Veteran disagreed with the effective date assigned for the addition of Reavadee and Brandi to his award. He indicated in a statement that he contacted VA by voice mail in June 2011 about his dependency change. He indicated that he did not receive any response from VA and again contacted the VA 800 number in early 2012 and requested that his file be transferred from the New Mexico RO to the Nevada RO. He noted that he did not receive any response from VA until August 2012 at which time VA requested evidence of the change in dependency. After consideration of the facts of the case, the Board finds that the assignment of the effective date of September 1, 2012, for grant of additional VA compensation for the Veteran's dependent spouse and child was proper. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.31, 3.401. The Veteran contends that the effective date for the receipt of compensation for his dependent child should be on July 1, 2010, the first day of the month following the birth of his daughter, and the addition of his spouse should be on November 1, 2010, the first day of the month following his marriage. However, while the Veteran would have been eligible for the addition of his dependent child and spouse on the dates he noted had he notified VA, there is no evidence that he contacted VA prior to August 17, 2012. The Board acknowledges that while the Veteran has asserted that he contacted VA prior to this date, there is no documentation of any communication regarding either his spouse or child. The earliest evidence of record of the Veteran contacting VA to advise that he was remarried and had a child was on August 17, 2012. The VA Form 21-686c was received in November 2012. The payment of the award therefore correctly commenced on September 1, 2012, the first day of the month following the effective date. 38 C.F.R. § 3.31 ORDER Entitlement to an effective date prior to September 1, 2012, for the addition of the Veteran's spouse and child to his award of Department of Veterans Affairs disability compensation benefits is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim of entitlement to an increased rating for PTSD and voiding dysfunction can be reached. The Veteran was last afforded a VA examination for his service-connected PTSD in September 2006 and for his voiding dysfunction in August 2006. In a May 2007 statement, the Veteran's representative requested new psychiatric and genitourinary examinations for the Veteran as his service-connected disabilities had increased in severity and prevented him from working. In light of the request for examinations in addition to the fact that it has been ten years since his last examinations, the Veteran should be afforded VA psychiatric and genitourinary examinations. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA or private treatment reports identified by the Veteran. Any negative responses should be associated with the claims file. 2. Then, schedule the Veteran for VA psychiatric and genitourinary examinations to determine the current nature and severity of his service-connected PTSD and voiding dysfunction. 3. Then, readjudicate the issues on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs