Citation Nr: 18143142 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-01 325 DATE: October 18, 2018 ORDER The removal of a former spouse, M.P., as a dependent, effective December [redacted], 2009, was proper; the appeal is denied. An effective date of June [redacted], 2009, but no earlier, for the addition of a dependent minor child, C.P., is granted. An effective date of December [redacted], 2010, but no earlier, for the addition of a dependent spouse, J.C., is granted. An effective date of August [redacted], 2012, but no earlier, for the addition of a dependent minor child, W.P., is granted. FINDINGS OF FACT 1. The Veteran divorced M.P. on December [redacted], 2009. 2. The Veteran’s son, C.P., was born on June [redacted], 2009. 3. The Veteran married J.C. on December [redacted], 2010. 4. The Veteran’s son, W.P., was born on August [redacted], 2012. 5. Resolving all doubt in favor of the Veteran, he submitted a Declaration of Status of Dependents (VA Form 21-686(c)) in July 2009, January 2010, February 2011, and October 2012. CONCLUSIONS OF LAW 1. The removal of a former spouse, M.P., as a dependent effective December [redacted], 2009, was proper. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.401. 2. The criteria for effective date of June [redacted], 2009, but no earlier, for the addition of a dependent minor child, C.P., have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.401. 3. The criteria for an effective date of December [redacted], 2010, but no earlier, for the addition of a dependent spouse, J.C., have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.401. 4. The criteria for an effective date of August [redacted], 2012, but no earlier, for the addition of a dependent minor child, W.P., have been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.4, 3.204, 3.213, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to July 1994, and August 1998 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 administrative decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Propriety of the removal of a dependent effective December [redacted], 2009, and the addition of three dependents as of February 5, 2014. 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 increase, of 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 application therefor. 38 U.S.C. § 5110(a). An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the 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. § 5110(f). 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 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, 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 1 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. § 5110; 38 C.F.R. § 3.401. Regarding “establishing entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of § 3.204.” 38 C.F.R. § 3.213(a). 38 C.F.R. § 3.204 indicates that: 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; 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 (see § 3.216). 38 C.F.R. § 3.204. In addition, the Board notes that the United States Court of Appeals for Veterans Claims has found that, while acceptance of a claimant’s written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). As an initial matter, the Board notes that the Veteran reported that he divorced his former spouse, M.P., on December [redacted], 2009, and the Agency of Original Jurisdiction (AOJ) removed such dependent effective the same date. Thus, the removal of the dependent effective December [redacted], 2009, was proper. Moreover, the Veteran seeks entitlement to an effective date prior to February 5, 2014, for the additional award of compensation for his current spouse and his two children as his dependents. In this regard, the Veteran contends that he filed VA Forms 21-686c before his Status of Dependents Questionnaire (Questionnaire) was received on February 5, 2014, showing that he had a spouse and two children as dependents, but they were never associated with his claims file. Specifically, in August 2015 and October 2015, the Veteran’s VA Forms 21-686c were received indicating that he filed such forms on July 24, 2009, after the birth of his son, C.P., on June [redacted], 2009; February 3, 2011, after he married his current spouse, J.C., on December [redacted], 2010; and on October [redacted], 2012, after the birth of his second son, W.P., on August [redacted], 2012. However, such forms were not date stamped showing they were received by the AOJ. Nonetheless, the Board notes that, in a September 2018 decision granting a waiver of recovery of an overpayment of a debt that was created due to the dependency changes, the Board found that the Veteran offered competent and credible testimony that he previously submitted VA Forms 21-686c on the aforementioned dates. Furthermore, the Board notes that the February 2014 Questionnaire was attached to a January 2014 letter sent to the Veteran by the AOJ requesting that he complete and return such document. However, there is no separate document showing that such letter was indeed sent, although the Veteran was clearly responding to it, as there is no evidence of record dated between December 2008 and February 2014, which raises a question as to whether the Veteran’s file is complete. Thus, based upon the foregoing and resolving all doubt in favor of the Veteran, the Board finds that effective dates of June [redacted], 2009 (C.P.), December [redacted], 2010 (J.C.), and August [redacted], 2012 (W.P.), but no earlier, for the addition of his dependent spouse and children are warranted as the Veteran filed VA Forms 21-686c within a year of his marriage, and the birth of his two sons. See 38 U.S.C. § 5110; 38 C.F.R. § 3.401. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel