Citation Nr: 18154761 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-46 105 DATE: November 30, 2018 ORDER Entitlement to an effective date prior to March 1, 2014 for the award of additional compensation for a dependent spouse, L.H., is denied. FINDINGS OF FACT 1. A January 2006 rating decision granted increased ratings for right and left foot disabilities, with a combined evaluation of 40 percent effective from October 2005, making the Veteran eligible to receive compensation for dependents. 2. On February 20, 2014, the Veteran informed VA of her September 2009 divorce from C.F. and her April 2010 marriage to her current spouse, L.H. CONCLUSION OF LAW The criteria for an effective date prior to February 20, 2014 (implemented March 1, 2014) for the award of additional compensation for a dependent spouse, L.H., have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.31, 3.400, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 notice letter from a Department of Veterans Affairs (VA) Regional Office (RO) which informed the Veteran of changes in the status of her dependents. 1. Entitlement to an effective date prior to February 20, 2014 for the additional award for a dependent spouse The Veteran is seeking an earlier effective date for the VA recognition of her marriage to her current husband, L.H. Historically, and according to the Veteran’s May 2015 VA Form 21-686c, the Veteran married C.F. in September 2003; they divorced in September 2009. She married her current husband, L.H., in April 2010. In a May 2015 notice letter, the RO removed the Veteran’s former spouse C.F. from her dependency award, effective October 1, 2009 (i.e., the first day of the month following the month of divorce). See 38 U.S.C. § 5112 (b)(2); 38 C.F.R. § 3.501(d)(2). The Veteran does not disagree with the effective date of this award reduction. In the August 2015 RO notice letter on appeal, the RO added L.H. to the Veteran’s dependency award, effective March 1, 2014. The Veteran disagrees with this date and contends that the effective date should be the date of her marriage to L.H., i.e., April 2010. The effective date of the award of any benefit or increase by reason of marriage or the birth or adoption of a child shall be the date of that event if proof is received by VA within a year from the date of marriage, birth or adoption. 38 U.S.C. § 5110(n). Regarding additional compensation for dependents, 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 veteran’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 VA’s request. 38 C.F.R. § 3.401(b)(1). 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. In the present case, a January 2006 rating decision granted increased ratings for right and left foot disabilities. This resulted in a combined evaluation of 40 percent effective from October 2005, making the Veteran eligible to receive an additional allowance for her dependents. A January 2006 letter notified the Veteran that she would be receiving an additional award, effective November 1, 2005, on account of her dependent (i.e., her child) and that it was her responsibility to notify VA of any changes in the status of her dependents. In response, the Veteran submitted a Declaration of Status of Dependents in January 2006 indicating that she married C.F. in September 2003. In July 2006, April 2007, July 2008, June 2011, and February 2012 letters, the Veteran was notified that she was receiving additional benefits for C.F. and a minor child and that it was her responsibility to notify VA of any changes in the status of her dependents. The Veteran first informed VA of her September 2009 divorce from C.F. and her April 2010 marriage to her current spouse, L.H., on February 20, 2014. See VA Form 21-686c ( Declaration of Status of Dependents). The August 2015 RO notice letter added L.H. to the Veteran’s dependency award, effective March 1, 2014, the first day of the month following notification. Applying the relevant law to the facts of this case, it is clear that an effective date prior to February 20, 2014 for the addition of the Veteran’s current spouse, L.H., to her VA disability compensation award is not warranted. Regarding the possible effective dates delineated in 38 C.F.R. § 3.401(b), the date of claim is February 20, 2014. The date dependency arose was in April 2010, when the Veteran married L.H. The effective date of the Veteran’s 40 percent evaluation was October 2005. Pursuant to 38 C.F.R. § 3.31, the date of the Veteran’s award for additional compensation for her spouse as a dependent was February 20, 2014. As the law instructs that the effective date for additional compensation for a dependent spouse is the latest of the aforementioned dates, the correct effective date is February 20, 2014 (implemented March 1, 2014). The Board acknowledges the Veteran’s contentions that she notified VA of the divorce and her subsequent marriage at the same time and, therefore, C.F. should not have been removed from the award until February 20, 2014, when her current spouse was added. However, for the period of time between the Veteran’s divorce from C.F. (September 2009) and her marriage to L.H. (April 2010), she was not married and was not entitled to any benefits for a spouse. Furthermore, it was not until February 20, 2014 that the Veteran informed VA that she married L.H. in April 2010 and that he became her dependent. Thus, the RO terminated the Veteran’s additional benefits for a spouse from October 1, 2009 to February 28, 2014. This action was proper. To the extent that the Veteran feels this is unfair, that argument pertains to a claim for a waiver of the recovery of debt which is not before the Board at this time. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor