Citation Nr: 18148686 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 09-49 812 DATE: November 8, 2018 ORDER An increased rating of compensation based on additional dependency allowance for the Veteran’s former spouse, D.S., is denied. An increased rating of compensation based on additional dependency allowance for the Veteran’s former spouse, C.S., is denied. An increased rating of compensation based on additional dependency allowance for the Veteran’s child, E.S., is denied. FINDINGS OF FACT 1. In July 1974, a District of Columbia court entered a judgment of dissolution of marriage between the Veteran and his former spouse, D.S. 2. In May 1977, the Veteran married C.S. 3. In July 1998, a Georgia court entered a judgment of dissolution of marriage between the Veteran and his former spouse, C.S. 4. The Veteran did not submit evidence of C.S.’s social security number to VA within one year of the November 2008 letter notifying him that such information must be received by VA for an award of benefits based on C.S. as his dependent. 5. The Veteran has not submitted evidence of E.S.’s social security number to VA. CONCLUSIONS OF LAW 1. The criteria for an additional award of compensation for the Veteran’s former spouse, D.S., have not been met. 38 U.S.C. §§ 1115, 5107, 5110, 5124 (2012); 38 C.F.R. §§ 3.1(j), 3.4, 3.204, 3.205, 3.216, 3.401 (2017). 2. The criteria for an additional award of compensation for the Veteran’s former spouse, C.S., have not been met. 38 U.S.C. §§ 1115, 5107, 5110, 5124 (2012); 38 C.F.R. §§ 3.1(j), 3.4, 3.204, 3.205, 3.216, 3.401 (2017). 3. The criteria for an additional award of compensation for the Veteran’s child, E.S., have not been met. 38 U.S.C. §§ 1115, 5107, 5110, 5124 (2012); 38 C.F.R. § 3.216 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was scheduled for a Board videoconference hearing in April 2018. He did not appear for this hearing and did not provide an explanation or ask that it be rescheduled. Therefore, the request for a Board hearing is deemed to have been withdrawn. The record reflects that VA-generated evidence has been added to the claims file since the remaining claims were last adjudicated in the April 2015 supplemental statement of the case (SSOC). In this regard, VA treatment records dated September 2013 to July 2015 were added to the claims file in August 2015, after the SSOC, and a new SSOC was not issued with consideration of the new VA treatment records. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a Substantive Appeal, this provision is only applicable to cases where the Substantive Appeal was filed on or after February 2, 2013, which is not the case here. 38 U.S.C. § 7105(e). However, remand for a SSOC is not warranted, as the new VA treatment records are not relevant to the dependency issues adjudicated herein. The Veteran has another appeal before the Board. Because that appeal involves issues dependent on different law and facts, it is the subject of a separate decision at a later time. See BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Dependency Allowance for the Veteran’s Former Spouse, D.S. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. In addition, 38 U.S.C. § 5110(f) provides that “[a]n 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.” A “spouse” is defined for VA purposes as a person whose marriage to the veteran is valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. §§ 3.1(j), 3.50(a). For purposes of VA benefits, a marriage means a marriage valid under law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. §103(c); 38 C.F.R. §3.1(j). Marriage is established by one of the following types of evidence: (1) copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record; (2) official report from service department as to marriage which occurred while the Veteran was in service; (3) the affidavit of the clergyman or magistrate who officiated; (4) the original certificate of marriage, if VA is satisfied that it is genuine and free from alteration; (5) the affidavits or certified statements of two or more eyewitnesses to the ceremony; (6) in jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship (this evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived); or (7) any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). In the absence of conflicting information, proof of marriage that meets the requirements of 38 C.F.R. § 3.205 together with the claimant’s certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b). However, when the claimant’s statement concerning marriage conflicts with other evidence of record, additional evidence is required to accept a marriage as valid or as dissolved. 38 C.F.R. § 3.204(a)(2). It is pertinent to note that current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. See 38 U.S.C. § 5124; 38 C.F.R. § 3.204(a)(1). Such statements should, in pertinent part, include the following details: (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and (3) the social security number of any dependent for whom the claimant is seeking benefits. Here, there is no indication of a statement on its face that raises a question of its validity, nor is there a reasonable indication, in the claimant’s statement or otherwise, of fraud or misrepresentation of the relationships in question. 38 U.S.C. § 5124(c); 38 C.F.R. § 3.204(a)(2). In addition, the United States Court of Appeals for Veterans Claims (“Court”) 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. McColley v. West, 13 Vet. App. 553, 557 (2000). Finally, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.216. The Veteran in this case asserts that he is eligible for additional dependency benefits for D.S., his former spouse, for the period prior to July 1974, the date of their divorce. As an initial matter, the Board finds that the Veteran and D. S. were divorced in July 1974. See July 1974 Divorce Decree. Therefore, from July 1974, forward, the Veteran is not entitled to an increased rate of compensation based on an additional dependency allowance for D.S. because they were not married. However, the Board will consider whether the Veteran is entitled to an additional dependency allowance for D.S. prior to the July 1974 divorce. Here, the Veteran did not meet the threshold criteria of a minimum 30 percent disability for basic entitlement to additional payment for dependents until September 30, 1997. 38 U.S.C. § 1115. Therefore, the Veteran was not entitled to additional payment for dependents during his marriage to D.S. Consequently, there is no legal basis upon which to award dependency benefits for D.S., the Veteran’s former spouse. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to dependents benefits for D.S. However, 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 (2012); Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that “§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority”). 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, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing increased ratings for dependents in its determination in this case. 38 U.S.C. § 1115. Dependency Allowance for the Veteran’s Former Spouse, C. S. The Veteran also asserts that he is eligible for additional dependency benefits for C. S., his former spouse. The Board finds that the Veteran and C. S. were married in May 1977 and divorced on July 9, 1998. See May 1977 Marriage Certificate and July 1998 Divorce Decree. Therefore, from July 9, 1998, forward, the Veteran is not entitled to an increased rate of compensation based on an additional dependency allowance for C.S. because they were not married. However, the Board will consider whether the Veteran is entitled to an additional dependency allowance for C. S. prior to the July 9, 1998 divorce. In an August 2003 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO), in pertinent part, awarded the following: service connection for posttraumatic stress disorder and assigned a 50 percent initial rating, effective September 30, 1997; service connection for degenerative changes of the right knee and assigned an initial 10 percent rating, effective September 30, 1997; and an increased rating of 20 percent for right knee Osgood Schlatter’s disease, effective September 30, 1997. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents have been met since September 30, 1997. 38 U.S.C. § 1115. Thus, the Board will consider whether the Veteran is entitled to an additional dependency allowance for C. S. for the period from September 30, 1997, the date the threshold criteria for additional payment for dependents was met, to July 9, 1998, the date of their divorce. In August 2003, the Veteran submitted VA Form 21-686(c), Declaration of Status of Dependents. He listed C. S. as a former spouse and stated that they were married in May 1977 and divorced in June 1999. He indicated that C. S. had been married and divorced once before her marriage to the Veteran, but he did not know the exact details. He did not provide a social security number for C.S. In March 2008, the Veteran again submitted VA Form 21-686(c), Declaration of Status of Dependents. He stated that he and C. S. were married in May 1977 and divorced in 2000. Again, he did not provide a social security number for C. S. In August 2008, the Veteran submitted an informal claim for dependency benefits. In support of this claim, he submitted a copy of his May 1977 marriage license. In November 2008, VA sent the Veteran a letter informing him that the August 2008 dependency claim was incomplete and specifying the required additional information, including social security numbers for all claimed dependents. The Veteran was told that he had up to one year from the date of this letter to submit the requested information. In November 2008, the Veteran submitted a verified copy of a May 1977 Application for Marriage License that he and C. S. had completed. C. S. reported that her prior marriage had ended with a divorce decree from a Georgia court in 1973. In an attached letter, the Veteran indicated that he had attempted to obtain a copy of this decree from the specified Georgia court, but had been told that no such record existed. The Veteran noted that the Application for Marriage License was a sworn statement, an official record of the state of Georgia, and gave him and C. S. the lawful right to be married. He asked VA to accept this document as proof under Georgia state law that his marriage to C. S. was legal. In December 2009, the Veteran submitted C. S.’s social security number to VA for the first time. Furthermore, the Veteran was aware of such issue, as demonstrated by his January 2009 statement that he did not have C. S.’s social security number. Although 38 C.F.R. § 3.216 has undergone revisions since the Veteran’s submission of his August 2003 claim form, the current version of this regulation and the version in effect in 2003 are essentially the same regarding the mandatory disclosure of social security numbers within 60 days from the date the beneficiary is requested to furnish the social security number. The Board finds that, while the Veteran partially provided relevant information regarding C. S.’s dependency status, he did not timely provide sufficient evidence to satisfy VA requirements for additional dependency benefits based on C.S. Specifically, he did not provide C. S.’s social security number within one year of the November 2008 letter notifying him that such information was required. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). Accordingly, the preponderance of the evidence is against an increased rate of compensation based on an additional dependency allowance for the Veteran’s former spouse, C. S., from September 30, 1997 to July 9, 1998. Therefore, the benefit-of-the-doubt doctrine is not applicable and an increased dependency rate is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Dependency Allowance for the Veteran’s Child, E. S. The Veteran also asserts that he is eligible for additional dependency benefits for his child, E. S. In November 2008, VA sent the Veteran a letter informing him that the August 2008 dependency claim was incomplete and specifying the required additional information, including social security numbers for all claimed dependents. The Veteran was told that he had up to one year from the date of this letter to submit the requested information. To date, the Veteran has not submitted E. S.’s social security number. Furthermore, the Veteran was aware of this issue, as demonstrated by his January 2009 statement that he did not have E. S.’s social security number. Although 38 C.F.R. § 3.216 has undergone revisions since the Veteran’s submission of his August 2003 claim form, the current version of this regulation and the version in effect in 2003 are essentially the same regarding the mandatory disclosure of social security numbers within 60 days from the date the beneficiary is requested to furnish the social security number. The Board finds that, while the Veteran partially provided relevant information regarding E.S.’s dependency status, he did not timely provide sufficient evidence to satisfy VA requirements for additional dependency benefits based on E. S. Specifically, he has not provided E. S.’s social security number. 38 C.F.R. § 3.216. Consequently, there is no legal basis upon which to award dependency benefits for the Veteran’s child, E. S. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to dependents benefits for E. S. However, 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 (2012); Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018). 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, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing increased ratings for dependents in its determination in this case. 38 U.S.C. § 1115 ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs