Citation Nr: 18153019 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-40 881A DATE: November 27, 2018 ORDER An effective date earlier than April 1, 2012 for the addition of the Veteran's dependent spouse to his VA disability compensation award is denied. FINDINGS OF FACT 1. The Veteran and the appellant were married in April 1968, divorced in July 1979, and remarried in April 1983. Notice of their remarriage was not received within one year of April 1983. 2. In June 2013, the RO granted a combined disability rating of 60 percent, commencing from April 1, 2012. 3. In September 2013, the Veteran first notified VA and submitted evidence of his remarriage to the appellant. In a March 2016 decision, the RO added the Veteran’s dependent spouse to his VA disability compensation award effective April 1, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than April 1, 2012, for the addition of the Veteran's spouse as a dependent have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1956 to April 1960, and July 1962 to August 1978 in the United States Air Force. He died in March 2017. The appellant, who is his widow, has been substituted for him pursuant to 38 U.S.C. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO). The electronic filing system contains medical records that were associated with the file by VA, rather than the appellant, since the RO’s last readjudication of the claim without a waiver of RO jurisdiction. See 38 U.S.C. § 7105(e)(1), (2) (2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). However, these medical records are not pertinent to the matter of an earlier effective date for the addition of the appellant to the Veteran’s compensation award. As such, there is no risk of prejudice to the appellant from proceeding without the waiver. Earlier Effective Date A veteran who receives disability compensation at a rate of 30 percent or higher is entitled to an additional amount per month for each dependent, to include a spouse and children. 38 U.S.C. § 1115; 38 C.F.R. § 3.4 (b)(2). Generally, the effective date of an award of increased compensation 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 for an award of additional compensation for a dependent spouse will be the latest of the following dates: (1) the "date of claim," (2) the date the dependency arises; (3) the effective date of the qualifying disability rating, provided evidence of dependency is received within one year of notification of such rating action; or (4) the date of commencement of the service member's award. 38 C.F.R. § 3.401(b). The term "date of claim" means (i) the date of the veteran's marriage, if evidence of the marriage is received within one year of the event; otherwise, (ii) the date notice is received of the dependent's existence, if evidence is received within one year of VA's request. 38 C.F.R. § 3.401 (b)(1). In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, if proof of dependents is submitted within one year of notice of the rating action. The Court noted that there is no freestanding claim for dependency benefits. It further held that there could be multiple rating decisions establishing entitlement to additional dependency compensation, as long as proof of dependency is submitted within one year of the notice of rating action. A review of the file shows that in April 1968, the Veteran and the appellant were married for the first time. In January 1979, the Veteran filed a claim for disability benefits. On his application, he reported that he and the appellant did not live together, and he did not know her address. In a March 1979 rating decision, he was granted service connection for several disabilities and assigned a combined rating of 30 percent. He was paid as a single veteran with no dependents. The RO provided notice regarding additional benefits for dependents. The RO asked him to provide his divorce decree from an earlier spouse, a copy of his current marriage certificate, and clarification as to whether he was divorcing the appellant. He did not respond. In March 2003 and December 2004 rating decisions, the Veteran’s disability rating was continued. In a December 2007 letter, his compensation rate underwent a legislative increase. He was advised to notify VA of any change in the status of any dependents. He did not respond. In an August 2008 rating decision, his disability rating was continued. In a December 2008 letter, his compensation rate underwent another legislative increase. He was advised to notify VA of any change in the status of any dependents but did not respond. In a June 2013 rating decision, his combined disability rating was increased to 60 percent, effective March 22, 2012. In an accompanying letter, he was advised to notify VA of any change in the status of any dependents. In September 2013, within one year of the June 2013 rating decision, the Veteran filed a Declaration of Status of Dependents, identifying the appellant as his dependent spouse. He also submitted a copy of his 1983 marriage certificate. In August 2015, the RO requested further details and documentation of his marriages. In September 2015, the Veteran provided a copy of his Decree of Dissolution of Marriage from the appellant, showing that they divorced in July 1979. He also provided another copy of his 1983 marriage certificate. In March 2016, the RO awarded additional compensation for the appellant as his dependent spouse, effective April 1, 2012. April 1, 2012 was the first day of the month following his increased 60 percent disability rating, granted by the June 2013 rating decision. The appellant now, and the Veteran prior to his death, have sought an effective date earlier than April 1, 2012, for her addition to his disability compensation award as the dependent spouse. They have sought an effective date of April 1983, the date of their remarriage. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. Initially, the threshold requirement for an additional allowance of a dependent has been met throughout the appeal period as the Veteran was in receipt of at least a 30 percent disability rating since March 1979. 38 C.F.R. § 3.4 (b)(2). For the reasons below, however, the Board further finds that the “latest of” date, required by 38 C.F.R. § 3.401(b), is the already-assigned date of April 1, 2012. Taking the provisions of 38 C.F.R. § 3.401(b)(1-4) in order, the “date of claim,” as defined as the date of marriage, cannot provide an earlier effective date because there was no evidence of the veteran's marriage received by VA within one year of April 1983. The “date of claim,” as defined as the date notice is received of the dependent's existence, if evidence is received within one year of VA's request, cannot provide an earlier effective date because VA first received notice of the dependent’s existence in September 2013, which is not earlier than the current date. Further, the Veteran did not respond within one year of VA’s earlier requests, including in 2007 or 2008. 38 C.F.R. § 3.401(b)(1). 38 C.F.R. § 3.401(b)(2), the date the dependency arose, cannot provide an earlier effective date. Dependency arose in April 1983 when the Veteran remarried. However, as the regulation requires that the latest date be applied, this cannot serve as the effective date. 38 C.F.R. § 3.401(b)(3), the date of the qualifying disability rating (provided evidence of dependency is received within one year of notification of such rating action) cannot provide an earlier effective date. The date of the qualifying disability rating here is March 22, 2012, when the 60 percent rating was assigned. Again, as the regulation requires that the latest date be applied, this cannot serve as the effective date. 38 C.F.R. § 3.401(b)(4), the date of commencement of the service member's award, provides the proper effective date. This date is April 1, 2012, the first day of the month following the 60 percent award. The RO assigned this date correctly, as 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; see also Gold v. Brown, 7 Vet. App. 315 (1995). The April 1, 2012 effective date is also consistent with the Court’s holding in Sharp discussed above. As in Sharp, VA received the requisite information regarding dependents within one year of the June 2013 rating decision that awarded additional compensation. Like Sharp, the Veteran here was entitled to compensation for his dependent spouse from the commencement of the higher rating. Finally, while he and the appellant were married for a short time from the date he was awarded a 30 percent disability rating on September 1, 1978, to the date of their divorce on July 31, 1979, an earlier effective date cannot be established on this basis due to the termination of their marriage. 38 C.F.R. § 3.501(d) requires a discontinuance of dependency benefits on divorce or annulment. Following the termination of his first marriage, the Veteran had to re-file for dependency benefits based on his 1983 marriage, which he did in September 2013. The matter of any eligibility for dependency benefits between September 1978 and July 1979 is not before the Board. The Board sympathizes with the appellant’s frustration that she and the Veteran had been married since April 1983 but did not receive dependency compensation until 2012. However, the Veteran's application to add her as a dependent spouse was not received by VA until September 2013. The effective dates regulations are very specific and the Board is simply without authority to grant the benefit sought. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from his service to his country. The Board has reviewed the record in depth, however, and is unable to identify a basis on which the claim may be granted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel