Citation Nr: 18155218 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 113 DATE: Whether a dependency allowance is warranted for the Veteran's spouse prior to June 30, 2016. December 4, 2018 ORDER A dependency allowance for the Veteran's spouse prior to June 30, 2016 is denied. FINDING OF FACT 1. A marriage certificate received by VA in 1968 reveals the Veteran married his first spouse in 1967. 2. VA received notice via a claim for compensation in June 2001 that the Veteran had a new spouse. 3. The Veteran became service connected with a combined disability rating of 30 percent or more in April 2012. 4. Documentation and verification of the Veteran’s marriage to his current spouse and the divorce of his first spouse was not received until June 30, 2016. CONCLUSION OF LAW The criteria for adding a dependency allowance for the Veteran’s spouse prior to June 30, 2016 have not been met. 38 U.S.C. §§ 5110, 5112(b)(2) (2012); 38 C.F.R. §§ 3.4 (b), 3.401(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1963 through August 1967. The Veteran’s DD Form 214 confirms he was awarded, in addition to other medals, a Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 determination to add spousal dependency benefits by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that the matters of entitlement to service connection for ischemic heart disease and entitlement to increased disability ratings for diabetes mellitus and bilateral hearing loss have been certified to the Board and will be the subject of a future decision. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Whether a dependency allowance is warranted for the Veteran's spouse prior to June 30, 2016 The Veteran contends that the effective date of his award of additional disability compensation benefits for his spouse should be May 1, 2012. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. The additional allowance is payable from the effective date of the rating if proof of dependency is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110 (f); 38 C.F.R. § 3.4 (b)(2). For VA purposes, a "spouse" is defined as a person whose marriage to the veteran meets the requirements of 38 C.F.R. § 3.1 (j). 38 C.F.R. § 3.50 (a). "Marriage," in turn, refers to a marriage that is valid under the law of the place where the parties resided at the time of marriage or the law of the place where the parties resided when the right to benefits accrued. 38 U.S.C. § 103 (c); 38 C.F.R. § 3.1 (j). A valid marriage may be established by various types of documentary evidence together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage, provided that such facts, if they were to be corroborated by the evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205 (a). In addition, VA will accept the written statement of a claimant as proof of dissolution of a marriage, for purposes of determining entitlement to benefits, provided that the statement contains: the date (month and year) and place of the event and the full name and relationship of the other person to the claimant. 38 C.F.R. § 3.204 (a)(1); see also, VA Adjudication Procedures Manual M21-1, Part III, Subpart iii, Chapter 5, Section B. Other evidence is required under certain circumstances such as where the claimant's statement on its face raises a question of its validity or the claimant's statement conflicts with other evidence of record. 38 C.F.R. § 3.204 (a)(2). The Board notes that the change in accepting written statements from the Veteran instead of requiring essentially third-party documentation of proof relating to marriages was effective in November 1996. See 61 Fed. Reg. 56626. The effective date of the award of any benefit or increase by reason of marriage shall be the date of that event if proof is received by VA within a year from the date of marriage. 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 a veteran's marriage, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 C.F.R. § 3.401 (b)(1). Generally, payment of monetary benefits based on increased awards of compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 U.S.C. § 5111 (a); 38 C.F.R. § 3.31. An increased award means an original or reopened award; or an award that is increased because of an added dependent or increase in disability or disability rating. 38 U.S.C. § 5111 (d); 38 C.F.R. § 3.31 (a), (b). Initially, the Board notes that the Veteran was in receipt of a 50 percent combined disability evaluation effective April 26, 2012. Prior to that date, the Veteran had been in receipt of no higher than a 20 percent combined disability evaluation. As such, the Veteran has met the threshold combined disability evaluation of 30 percent or more under 38 U.S.C. § 1115 since April 26, 2012. In February 1968, VA received a copy of a Marriage Certificate showing the Veteran married his first spouse, G. H., in December 1967. In June 2001, VA received a Form 21-526 from the Veteran in which he identifies K. M. H. as his spouse. The Board notes that the Veteran did not provide any indication regarding the status of his prior marriage or when his current marriage occurred. In an August 2012 notification letter, the RO notified the Veteran that he was being paid as a single Veteran with no dependents, but advised him that he may be eligible for additional benefits based on dependency and was advised to complete and submit an attached VA Form 21-686c if he wished to file for such a benefit. On June 30, 2016, VA received a copy of a Record of Marriage showing the Veteran married his spouse, K. M. H., in June 1975. VA also received a completed VA Form 21-686c identifying K. M. H. as his current spouse and indicating that he had divorced G. H. in 1975 in Los Angeles, California. In a July 2016 letter, the Veteran stated that he had not been able to locate his final divorce papers, but further stated that the California Divorce Index 1966-1984 shows it was in July 1973. In a July 2016 notification letter, the RO advised the Veteran that his claim for additional dependency benefits had been granted effective June 30, 2016. In August 2016, VA received a Notice of Disagreement (NOD) from the Veteran requesting “back pay” from May 1, 2012, with the reasoning that his disability benefits had been paid out for a single Veteran and he had been married since June 1975. In light of the above, the Board finds that a dependency allowance for the Veteran’s spouse prior to June 30, 2016 is not warranted. 38 C.F.R. § 3.401 (b) is very specific that the evidence establishing dependency must be received within one year of notification of the rating action. Therefore, although the VA was already on notice of the Veteran's marriage, confirmation that the marriage continued was required before the dependency benefit could be paid. The law (38 U.S.C. § 5110 and 38 C.F.R. § 3.401) requires actual receipt of notice. The evidence shows that the Veteran was notified by the RO of the availability of the dependency benefit in the August 2012 notification letter, but the Veteran did not submit his claim for dependency allowance, proof of marriage to his current spouse, and proof of divorce of his first spouse, until June 30, 2016. As the disposition of this claim is based on the law as applied to undisputed facts, the claim must be denied based on a lack of entitlement under the law. See, Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel