Citation Nr: 1753317 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 14-06 953 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's spouse. 2. Entitlement to an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's child. ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction has subsequently been transferred to the Newark, New Jersey, RO. FINDINGS OF FACT 1. In April 2003, the RO awarded the Veteran service-connection benefits with a combined 40 percent rating, effective October 1, 2001. 2. In a Report of General Information, dated May 31, 2011, the Veteran verified the identities of his ex-wife, current wife, and child. 3. The Veteran's dependents were added to his award effective May 31, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's spouse have not been met. 38 U.S.C. §§ 1115, 5101, 5110 (2012); 38 C.F.R. §§ 3.4, 3.31, 3.401 (2017). 2. The criteria for an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's child have not been met. 38 U.S.C. §§ 1115, 5101, 5110 (2012); 38 C.F.R. §§ 3.4, 3.31, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). With regard the claim for an earlier effective date for the award of dependent compensation, VCAA notice is not required because the issue presented is solely one of statutory interpretation and the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also 38 C.F.R. § 3.159 (b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). The pertinent facts regarding the Veteran's marital status and dependent status of his child, the effective date of increases in the combined rating, and date of receipt of relevant documents needed to award additional compensation for his spouse and child have already been established by the evidence currently of record and are not in dispute; instead, resolution of the claim is dependent on interpretation of the applicable laws and regulations pertaining to the effective date for additional compensation for a dependent. The VCAA is therefore inapplicable and need not be considered with regard the Veteran's appeal. See Smith, 14 Vet. App. at 231; Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004. II. The Merits of the Claims Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a). The effective date of an award of additional compensation on account of dependents based on the establishment of a disability rating is payable from the effective date of such rating, but only if proof of such dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110 (f). Any veteran who is entitled to compensation, and whose disability is rated not less than 30 percent, shall be entitled to additional compensation for dependents, including a spouse and each child. 38 U.S.C. § 1115 (1)(A). 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. § 5110 (n). The implementing regulation provides the effective date for additional compensation for a dependent will be the latest of the following: (1) Date of claim. This term means the following, listed in their order of applicability: (i) date of veteran's marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise (ii) date notice is received of the dependent's existence, if evidence is received within one year of VA's request; (2) Date dependency arises; (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; (4) Date of commencement of veteran's award. 38 U.S.C. § 5110 (f); 38 C.F.R. § 3.401 (b). Under 38 U.S.C. § 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. 38 U.S.C. § 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. § 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. § 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. § 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. § 5107 (a). 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. In an April 2003 rating decision, the Veteran was granted service connection for lumbosacral spondylosis and disc disease, cervical spondylosis and disc disease, hypertension, right Achilles tendonitis, left hallux valgus, right hallux valgus, and epicondylitis of the right elbow, all effective October 1, 2001. As the Veteran had a combined rating of 40 percent as of October 1, 2001, he was eligible for additional compensation based on any dependents, as of that date. In June 1, 2011, the Veteran received a notice from the Roanoke RO which stated the VA Form 21-0538 "Status of Dependents Questionnaire, sent to the Veteran on May 18, 2011, was returned due to being sent to an "inaccurate address." In a Report of General Information on May 31, 2011, the Veteran verified his current address and clarified the identities of his dependents. As such, his ex-wife was removed as a dependent and additional information regarding his current wife and child was requested. According to the record submitted by the Veteran, date stamped by the Roanoke RO on June 6, 2011, the Veteran was divorced from his ex-wife, L.E.C., in July 2004. He married his current wife, L.A.L., in September 2005, and his daughter, S.L., was born in June 2006. In September 2011, the Roanoke RO issued a decision to the Veteran that the payments of his benefits were based on two dependents, his current wife and his child. May 18, 2011, was determined as the effective date, as it was the date of claim. The Veteran contends that once he received his divorce decree in 2004, he mailed a copy to the Roanoke RO in October 2004. He stated he submitted a copy of his marriage certificate listing his wife, L.A.L., to the Roanoke RO in November 2005. He stated that he relocated four times since his divorce and while he did have a forwarding address, it was not reliable and he did not recall hearing from the Roanoke RO confirming that these records were received. He stated he submitted these records in good faith in a timely manner and believes the Roanoke RO lost these records. Therefore, the Veteran requests that the effective dates for the award of dependent compensation should be August 9, 2005, for his wife and June 2, 2006, for his daughter. After a review of all of the evidence, the Board finds that an effective date prior to May 31, 2011, is not warranted for the award of additional compensation benefits for a dependent spouse and child. In this case, since service connection was established effective October 1, 2001, the Veteran has met the threshold requirement for payment of additional compensation for a dependent based on his combined, 40 percent disability rating. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b)(2). However, applying the law to the facts of this case, the Board concludes that entitlement to additional compensation benefits based on L.A.L. and S.L.'s status as the Veteran's dependents arose no earlier than May 31, 2011, which is the date VA first became aware of the existence of his wife and child. An effective date is not warranted from the date of his marriage to L.A.L. or from S.L.'s birth because VA did not receive evidence within a year of either event or become aware of the existence of L.A.L. or S.L. before May 31, 2011. In summary, the correct effective date for additional compensation benefits is May 31, 2011-the date VA was notified of the status of his current wife and child as the Veteran's dependents. The Board is sympathetic to the Veteran's contention that he provided the Roanoke RO with a copy his divorce decree and marriage certificate in October 2004 and November 2005, respectively. However, VA simply has no record of receiving those documents prior to May 31, 2011. Here, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." See Smith v. Derwinski, 2 Vet. App. 429, 432-433 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). Accordingly, an effective date prior to May 31, 2011, is not warranted. ORDER Entitlement to an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's spouse is denied. Entitlement to an effective date prior to May 31, 2011, for the award of dependent compensation for the Veteran's child is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs