Citation Nr: 1803891	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-41 491A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an effective date earlier than May 19, 2011, for the award of dependency benefits for the Veteran's current spouse (S.E.).


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Redman, Counsel





INTRODUCTION

The Veteran served on active duty from April 1962 to June 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  Jurisdiction of the case currently resides with the VA RO in Phoenix, Arizona.

In August 2017 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

VA received notification on May 19, 2011, of the Veteran's November 2009 marriage to his current spouse, S.E.


CONCLUSION OF LAW

The criteria for an effective date earlier than May 19, 2011, for the award of dependency benefits for the Veteran's current spouse (S.E.) have not been met.  38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.401 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The essential facts are not in dispute, and have been acknowledged by the Veteran.  The Veteran married his current spouse, S.E., in November 2009.  Notice of the Veteran's November 2009 marriage was not provided to VA until a "Declaration of Status of Dependents" was received by VA on May 19, 2011.

The Veteran asserts that because he married S.E. in November 2009 and sent notice of the marriage at that time (he claims that it must have been lost since it was not received by VA), he should have been entitled to VA compensation at the same dependent payment rate from the date of his November 2009 marriage.  

While the Board is sympathetic to the Veteran's claim, unfortunately the Board must deny the claim.  VA regulations state that the effective date of additional compensation based on dependency status will be the date of marriage, if evidence of the event is received within one year; otherwise, it will be date of notice of the event or of the dependent's existence.  See 38 C.F.R. § 3.401.  In this case, there is no documentation in the claims file that the Veteran notified VA of his wife S.E.'s dependency prior to May 19, 2011.  Although they were indeed legally married prior to that date, the regulations concerning effective dates hinge upon the date of notification, unless the claim was received within one year of the marriage.  In other words, there is a one year grace period to notify VA of the change.  After that period, the effective date is the date of notification.  

Simply stated, the Board lacks the legal authority to award an earlier effective date for the payment of the Veteran's compensation benefits at the higher rate, or otherwise waive the legal requirement that he notify VA in a timely fashion of any dependency changes.  The Board is sympathetic to the Veteran's claim that he sent notification to VA at the time of his 2009 marriage; however, the Board is bound by the laws and regulations that apply to veterans claims.  38 U.S.C. § 7104 (c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017).  The claim for an effective date earlier than May 19, 2011, for the award of dependency benefits for the Veteran's current spouse (S.E.) must therefore be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 



ORDER

Entitlement to an effective date earlier than May 19, 2011, for the award of dependency benefits for the Veteran's current spouse (S.E.) is denied.




____________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs