Citation Nr: 18153105 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16 25-804 DATE: November 27, 2018 ORDER Entitlement to an effective date later than September 1, 2006, for the removal of a dependent spouse, L, from the payment of VA compensation benefits is denied. Entitlement to an effective date earlier than September 11, 2014, for the addition of a dependent spouse, D, to the payment of VA compensation benefits is denied. FINDINGS OF FACT 1. The Veteran and his spouse L, divorced in August 2006. 2. In January 2007, the Veteran and his spouse, D, got married. 3. The Veteran submitted an updated Declaration of Status of Dependents, VA Form 21-686c, that was received by the VA September 11, 2014. 4. The weight of competent and probative evidence shows that on September 11, 2014, VA was first notified of the marriage of the Veteran to D. CONCLUSIONS OF LAW 1. The criteria for an effective date later than September 1, 2006, for the removal of a dependent spouse, L, from the payment of VA compensation benefits have not been met. 38 U.S.C. §§ 5101, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.501 (2017). 2. The criteria for an effective date earlier than September 11, 2014, for the addition of a dependent spouse, D, to the payment of VA compensation benefits have not been met. 38 U.S.C. §§ 5101, 5103A, 5107, 5110; 38 C.F.R. §§ 3.31, 3.102, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1974 to August 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014, administrative decision of the Manchester, New Hampshire, Department of Veterans Affairs (VA) Regional Office (RO). Relevant Law and Regulations An award of additional disability compensation for a dependent is effective from the latest of the following dates: (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran’s marriage, or birth of his or her child, or adoption of a child, if the evidence of the event is received within one year of the event; otherwise, (ii) Date notice is received of the dependent’s existence, if evidence is received within one year of the VA request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of veteran’s award. 38 U.S.C. § 5110; 38 C.F.R. § 3.401(b). The effective date of discontinuance of compensation to a veteran by reason of a divorce of a dependent spouse shall be the last day of the month in which the divorce occurred. 38 C.F.R. § 3.501(d). 1. Entitlement to an effective date later than September 1, 2006, for the removal of a dependent spouse, L, from the payment of VA compensation benefits. The divorce decree shows that the Veteran and his spouse, L, divorced in August 2006. Based on the date of the divorce, the RO removed dependent spouse, L, from the payment of VA compensation benefits effective September 1, 2006. The RO removed L on September 1, 2006, because it was the first day of the month following the month in which the Veteran got divorced. The effective date of the removal of a dependent spouse from the award of VA compensation benefits is based on the date of the divorce. The Board concludes that the most credible and probative evidence weighs against a finding that the criteria for an effective date later than September 1, 2006, for the removal of a dependent spouse, L, from the payment of VA compensation benefits have been met. Therefore, the preponderance of the evidence is against the claim, and it is denied. 2. Entitlement to an effective date earlier than September 11, 2014, for the addition of a dependent spouse, D, to the payment of VA compensation benefits. A marriage certificate shows that in January 2007, the Veteran and his spouse, D, got married. The first question is whether VA was informed of this marriage within one year. In February 2012, the Veteran was notified that his spouse L would be removed as his dependent effective May 1, 2003, as this was the last time the VA knew she was his dependent. There is no indication that this letter was returned as undeliverable. In August 2014, the RO removed L as the Veteran’s dependent, effective May 1, 2003. On September 11, 2014, the Veteran submitted a notice of disagreement and a VA Form 21-686c, in which he explained that he and L had divorced. The RO gave the Veteran the benefit of the doubt that he did not receive the VA Form 21-686c in February 2012, and removed L as a dependent as of September 1, 2006 (the first day of the month following his divorce from L). There is no probative evidence prior to September 2014 showing that the Veteran reported to VA that he married D. The Veteran has not submitted any evidence that is date marked prior to 2014, such as a return receipt, showing that he mailed information about his recent marriage to VA. The weight of evidence shows that evidence was not received by VA within one year of the marriage in January 2007. Therefore, the date of the claim cannot be the date of the marriage. A review of the electronic claims file, shows that September 11, 2014, is the earliest date in which notice has been received of the existence of D as a dependent spouse. Prior to that date, the RO thought that the Veteran was still married to L, as evidenced by the February 2012, letter asking the Veteran to complete a VA Form 21-686c to keep his spouse, L, as a dependent. Nonetheless, September 11, 2014, is the date VA received the claim. The date of claim, September 11, 2014, is later than the date dependence arose - the date of marriage in January 2007. Pursuant to 38 C.F.R. § 3.401(b), the latest date of all possible dates for the award of service-connected compensation benefits for the dependent spouse D is September 11, 2014—the date the Veteran’s newly submitted 21-686c was received. To the extent the Veteran appears to be raising an argument couched in equity in that he was married to D prior to September 11, 2014, this argument is not relevant to this claim because 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; Harvey, 6 Vet. App. at 425 (1994). As explained above, the Board has decided this case based on the law and regulations. Specifically, the effective date of the grant of service-connected compensation for a spouse is based on the date that the claim was filed since no evidence of the marriage was received by VA within one year of the marriage. 38 C.F.R. § 3.401. For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs against a finding that an effective date earlier than September 2014, for the addition of dependent spouse D to his compensation award is warranted. Thus, the preponderance of the evidence is against the claim, and it is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel