Citation Nr: 18146525 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-40 959 DATE: October 31, 2018 ORDER Entitlement to an effective date earlier than March 30, 2016, for the award of spousal dependency benefits is denied. FINDING OF FACT On March 30, 2016, the RO was informed of the Veteran’s marriage to E.C., which took place in December 2008. CONCLUSION OF LAW The criteria for an effective date earlier than March 30, 2016, for the award of spousal dependency benefits have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4(b)(2), 3.31, 3.401 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from September 1975 to September 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 decisional letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date earlier than March 30, 2016, for the award of spousal dependency benefits 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). The statute and regulations specifically provide that 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); 38 C.F.R. § 3.401(b)(3). The statute and regulation further provide that the effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event, if proof of such event is received by the Secretary within one year from the date of marriage. 38 U.S.C. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). 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 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, it is 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(f), (n); 38 C.F.R. § 3.401(b)(1). The earliest date that an additional award of compensation for a dependent spouse 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. An additional amount of compensation may be payable for a spouse when a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115(1)(A); 38 C.F.R. § 3.4(b)(2). In this case, the Veteran contends that his current spouse should have been added as a dependent earlier than March 30, 2016. Specifically, he asserts that the effective date should be the date of their marriage in December 2008. The Veteran reports that he was not aware that VA had not been informed of his current marriage until a request for updated information was received in 2016. He asserts that he thought everything was taken care of when he submitted paperwork for her to receive a new military ID card and Tricare medical benefits at Nellis Air Force Base, since information of his marriage was added to the computer at that time. The Veteran further asserts that these actions should be good enough for VA to change the effective date based on the date of their marriage. See July 2016 attachment to VA Form 21-0958 and August 2016 attachment to VA Form 9. The evidence reflects that the Veteran was married to P.A.D. prior to E.C. In February 2000, he was informed that he was receiving additional benefits for his spouse (P.A.D.) and children and that he should notify VA of any change in the number or status of his dependents. In February 2016, VA sent a letter to the Veteran informing him that he was receiving an additional amount for his spouse and/or child(ren) and that he needed to show continued entitlement by submitting the required form. The Veteran subsequently submitted VA Form 21-0538, which was received on March 30, 2016. This form notified VA that the Veteran’s marriage to P.A.D. had ended with her January 2008 death and that he had gotten remarried to E.C. in December 2008. There is no correspondence in the claims file indicating that the Veteran informed VA of any change in marital status prior to when the VA Form 21-0538 was received. In the May 2016 decisional letter that is the subject of this appeal, the RO awarded dependency benefits for E.C. effective March 30, 2016, the date on which VA received notice of the Veteran’s second marriage. The Board acknowledges that the Veteran married E.C. in December 2008 and that they remain married. As noted above, however, there is no indication in the Veteran’s file that he ever informed VA of his first wife’s death and his second marriage to E.C. until March 30, 2016. Although the Veteran may have been unaware of the laws and regulations pertaining to the assignment of an effective date for dependency benefits and that he had to notify VA directly rather than depend on a change in marital status reflected in benefits he receives through the military, the absence of such knowledge cannot serve as the basis for an award of benefits. Morris v. Derwinski, 1 Vet. App. 260 (1991); Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Velez v. West, 11 Vet. App. 148 (1998). Persons dealing with the government are charged with knowledge of federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent lack of knowledge. Morris, 1 Vet. App at 265. Accordingly, the Board must conclude that the Veteran did not provide the proper documentation and information regarding his marriage to E.C. until March 30, 2016, more than one year after their marriage. Based on current laws and regulations, the RO appropriately determined that E.C. could not be added as the Veteran’s dependent spouse from the date of their marriage in December 2008 because notice of the marriage was not timely received within a year from the date of the marriage. After considering the facts of this case, the Board finds that there is no legal basis to assign an effective date prior to March 30, 2016, for the award of spousal dependency benefits for E.C. The claim for an effective date earlier than March 30, 2016, for the award of spousal dependency benefits for E.C., must therefore be denied. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel