Citation Nr: 1808479 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 17-48 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to July 1, 2014, for the payment of additional compensation for the Veteran's dependent spouse. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to October 1980, with four years additional prior active service to include service in the Republic of Vietnam. He was awarded the Bronze Star Medal (2) and the Soldier's Medal and retired at the rank of captain. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran provided testimony at a December 2017 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to vocational rehabilitation benefits and a total disability rating based on individual employability (TDIU) have been raised by the record in an April 2016 VA Form 28-1900, Disabled Veteran's Application for Vocational Rehabilitation, and a December 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran became eligible to receive additional compensation for dependents effective March 23, 2010. 2. On September 30, 2013, the Veteran filed an informal claim for additional compensation for his dependent spouse through a notice of disagreement. The claim was filed within one year of the August 2013 rating decision that increased the Veteran's combined schedular rating to 50 percent, effective November 13, 2012. CONCLUSION OF LAW The criteria for an effective date of November 13, 2012 for the payment of additional compensation benefits for the Veteran's dependent spouse are met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). For the aforementioned reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. 38 U.S.C. § 5110(f). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals pending on that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the Veteran's claim was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran contends he is entitled to an earlier effective date prior to July 1, 2014 for the payment of additional compensation for his dependent spouse. In an April 2016 rating decision, the RO granted an increase in schedular evaluation for the Veteran's service-connected disabilities from 50 to 80 percent with an effective date of June 18, 2014. The RO notified the Veteran in an April 2016 letter that he may be eligible for additional compensation based on dependency as his combined evaluation was 30 percent or more disabling. Subsequently on April 26, 2016, the Veteran filed a VA Form 21-686c, Declaration of Status of Dependents, and included the dependent information for his spouse. The dependent information included the spouse's name, date and place of marriage, and spouse's social security number. As the application was received within one year of the rating decision, the RO granted additional compensation for the Veteran's dependent spouse, effective July 1, 2014, the first of the month after the effective date of the increase in schedular evaluation. In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate effective date for the Veteran's claim of additional compensation is November 13, 2012, the effective date for the increase in schedular evaluation from 30 to 50 percent. In a claim for benefits dated in August 1980 and received in November 1980, the Veteran reported that he was married with his spouse's name and date of marriage. In its November 2010 rating decision, the RO granted an increase to the Veteran's service-connected chronic bronchitis to 10 percent disabling, effective March 23, 2010. The RO also continued the 20 percent disabling evaluation of recurrent dislocation of the left shoulder. As the Veteran had a combined schedular rating of 30 percent, he was first eligible to receive additional allowance for dependents effective March 23, 2010. The RO indicated in a notification letter dated November 2010 that he was paid as a single veteran with no dependents. The letter further informed the Veteran that veterans who have service-connected conditions with a combined evaluation of 30 percent or more may receive an additional allowance for their dependents. Should the Veteran claim any dependents, the letter advised him to complete the enclosed VA Form 21-686c, Declaration of Status of Dependents. The record reflects the Veteran did not file a Declaration of Status of Dependents within one year of the date of the request, nor did the Veteran raise the issue of additional compensation in his timely March 2011 notice of disagreement. 38 U.S.C. § 5110(f). Therefore, the appeal stream for the use of the date of March 23, 2010 as a potential effective date for adding dependents, had ended. On November 13, 2012, the Veteran filed a claim for increased evaluation of his service-connected disabilities. The record reflects the RO issued a rating decision to the Veteran in August 2013. The rating decision granted service connection for allergic rhinitis and assigned a 30 percent disability rating, effective November 13, 2012. The 30 percent disability rating increased the Veteran's combined schedular rating to 50 percent. In September 2013, the RO provided a notification letter that informed the Veteran of eligibility of claims for dependents and requested that the Veteran submit the VA Form 21-686 to confirm the status of his dependents. Shortly after the Board hearing in December 2017, the Veteran submitted a copy of a notice of disagreement for the effective date of the payment of additional compensation for dependents dated on September 30, 2013. There is no stamp of date of receipt by VA on the copy. Although there is a discrepancy in dates as to which rating decision was at issue, the Veteran's representative, at the hearing, indicated that the issues on appeal corresponded with those included in the August 2013 rating decision. Although he did not provide the required identity information on form 21-686, the Veteran did indicate that he was married with dependents. The September 30, 2013 notice of disagreement preserved the appeal stream. Therefore, the August 2013 rating decision was not final, and the period on appeal begins from his November 13, 2012 application. As noted above, during the pendency of the appeal, the Veteran provided the required information in April 2016. Significantly, the name and date of marriage of his spouse is the same as that he reported in 1980, indicating that he had been married to the same woman for the entire intervening period of time. The Board acknowledges that VA requires prompt reporting of the status of dependents within one year after eligibility is established because dependency status in the past does not necessarily continue unchanged. The Veteran was advised several times that specific dependent information was required. The Veteran did assert in September 2013, within one year of the August 2013 rating decision, that he was married and, during the pendency of the appeal, eventually provided the required information which confirmed marriage to the same dependent as he had reported in 1980. In this case, while not excusing the Veteran's failure to respond with the required information as requested, the Board will resolve any doubt in favor of the Veteran and find that the effective date for the payment of additional compensation for the Veteran's dependent spouse is November 13, 2012. 38 U.S.C. § 5110(a). ORDER From November 13, 2012 forward, entitlement to additional compensation for the Veteran's dependent spouse is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs