Citation Nr: 18161218 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-04 803A DATE: December 31, 2018 ORDER Restoration of spousal dependency allowance for F.D.S., effective January 1, 2007, is granted. FINDINGS OF FACT 1. The Veteran and F.D.S. are still legally married, but separated. 2. The record does not include sufficient documentation to establish the Veteran was sent proper notice of a December 2014 request for certification for continued eligibility for spousal dependency allowance. CONCLUSION OF LAW The criteria for termination of spousal dependency allowance have not been met. 38 U.S.C. § 1115 (2012); 38 C.F.R. §§ 3.1, 3.4, 3.204, 3.105, 3.213, 3.652 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2016 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that retroactively terminated the Veteran’s spousal dependency allowance, effective January 1, 2007. The Board finds the record establishes the Veteran and his wife, F.D.S., are still legally married. The Veteran has acknowledged he and F.D.S. separated several years ago; however, VA law does not impose a cohabitation or support requirement for receipt of additional disability compensation benefits based on dependency as it does for pension benefits. Compare 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2) with 38 U.S.C. § 1521, 38 C.F.R. § 3.23(d)(1). The only requirement in the compensation context is a legally valid marriage. See 38 C.F.R. § 3.1(j). An October 2006 decision determined the Veteran had provided sufficient evidence to establish F.D.S. as a dependent spouse. There is no evidence that indicates their marriage was legally terminated or annulled. VA regulations indicate a statement from the Veteran is sufficient to validate dependency status unless there is some basis to question its validity. See 38 C.F.R. §§ 3.204(a); 3.213(a)(1). The Veteran has consistently maintained he and F.D.S. are still legally married, but separated. There is no reason to question the validity of the Veteran’s statements that he is still legally married to, but separated from, F.D.S., as they are entirely consistent with notations in examination reports and treatment records regarding his reports of his marital status. Thus, the Board finds the record establishes the Veteran is still legally married to F.D.S. The Board notes the Agency of Original Jurisdiction has not made a finding that the Veteran and F.D.S. are no longer married. Rather, it appears the AOJ terminated the Veteran’s spousal dependency allowance solely based on his alleged failure to respond to a request for certification of continued eligibility pursuant to 38 C.F.R. § 3.652. This regulation indicates individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. The beneficiary will be advised at the time of the request that the certification must be furnished within 60 days from the date of the request therefor and that failure to do so will result in the reduction or termination of benefits. If the certification is not received within 60 days from the date of the request, the eligibility factor(s) for which certification was requested will be considered to have ceased to exist as of the end of the month in which it was last shown by the evidence of record to have existed. The effective date of reduction or termination of benefits will be in accordance with §§ 3.500 through 3.504 as in effect on the date the eligibility factor(s) is considered to have ceased to exist. The claimant will be advised of the proposed reduction or termination of benefits and the date the proposed action will be effective. An additional 60 days from the date of notice of the proposed action will be provided for the claimant to respond. If the certification is not received within the additional 60-day period, the proposed reduction or termination of benefits will be put into effect. When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. 38 C.F.R. § 3.652. The statement of the case issued by the AOJ in January 2017 indicates a “system generated control for return of dependency verification form” was created on December 31, 2014. Yet, this document does not appear to have been associated with the claims file. There is also not a copy of the notice letter that was purportedly sent to the Veteran requesting certification of continued eligibility for continued eligibility for spousal dependency allowance. The record also does not include any explanation as to why the AOJ took no further action on the request until May 2016 with the retroactive termination finalized approximately two years after the alleged initial request for continued eligibility. The Board cannot uphold the retroactive termination of a benefit to which the Veteran was otherwise legally entitled based simply on an alleged failure to respond a system generated control for return of dependency verification form unless there is clear documentation of the actions taken by the AOJ to protect the Veteran’s due process rights. In reaching this conclusion, the Board acknowledges the Veteran did not respond within 60 days of the May 2016 notice letter proposing the reduction in benefits. See 38 C.F.R. § 3.105(f). Nevertheless, 38 C.F.R. § 3.652 has a threshold requirement that a request for certification of continued eligibility must be sent prior to the proposed reduction. Here, there is no evidence that confirms this request was actually sent to the Veteran. As such, the Board cannot find the requirements of 38 C.F.R. § 3.652 have been met. In sum, the Board finds restoration of the Veteran’s spousal dependency allowance for F.D.S., effective January 1, 2007, is warranted with any debt related thereto terminated as being improperly created. The record establishes the Veteran and F.D.S. are still married. He is therefore entitled to dependency allowance based solely on her status as his spouse. See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). The record does not include sufficient evidence to support a finding that the procedural safeguards of 38 C.F.R. § 3.652 have been met. Thus, the Veteran’s appeal of the termination of this spousal dependency allowance is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel