Citation Nr: 1812972 Decision Date: 03/05/18 Archive Date: 03/13/18 DOCKET NO. 16-22 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than March 1, 2015 for adding the Veteran's spouse to his award, to include as due to a clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active service from July 1971 to June 1975. This matter comes before the Board on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO) that was issued in July 2015. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). FINDINGS OF FACT 1. The Veteran submitted a copy of his marriage certificate on April 24, 2015 showing that he was married on June [REDACTED], 2012. This is the first time in which the Veteran notified VA of his marriage. 2. In a January 2014 rating decision, the Veteran was awarded service connection and initial ratings for disabilities such that his previous combined 40 percent rating for his set of service connected disabilities was increased to 70 percent effective April 18, 2012 and then decreased to 60 percent effective April 1, 2014. 3. A January 16, 2014 notification letter informed the Veteran that the RO determined that his compensation benefits were to be paid at the 70 percent rate and 60 percent rate respectively for a single veteran with no dependents, and requested that the Veteran submit additional information concerning any dependents he desired to add to the award within one year; a response to this letter was not received prior to the one year deadline, information concerning dependents was not otherwise received within a year, and the Veteran did not appeal the January 2014 determination. 4. In an April 2015 rating decision, the Veteran was awarded increased ratings for disabilities such that his previous combined 60 percent evaluation for his set of service connected disabilities was increased to 70 percent effective February 27, 2015. 5. An April 17, 2015 notification letter informed the Veteran that the RO determined that his compensation benefits were to be paid at the 70 percent rate for a single veteran with no dependents, and requested that the Veteran submit additional information concerning any dependents he desired to add to the award within one year. 6. On April 24, 2015, the Veteran submitted information to VA identifying his spouse as a dependent he wished to add to his VA compensation award. 7. An administrative decision in July 2015 notified the Veteran that his dependent spouse was added to his award effective March 1, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than March 1, 2015, for the award of dependency benefits for the Veteran's spouse have not been met. 38 U.S.C. §§ 1115, 5110, 7105 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.156, 3.204, 3.205, 3.401 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria The Veteran's appeal seeks to establish that an effective date earlier than March 1, 2015 is warranted for the award of compensation for his dependent spouse. Specifically, the Veteran expressed in the April 2015 notice of disagreement that he believes the correct effective date should be June [REDACTED], 3012. The Veteran contends that the earlier effective date is warranted because VA had knowledge of his dependent long prior to March 1, 2015, as she had been present at and testified in a RO hearing held in December 2012, just months after getting married. The Veteran argues that, had the RO properly adhered to its duty to assist and prompted the Veteran to submit a copy of his marriage certificate at that time, he would have been able to submit it within the one year time limit of his marriage and, thus, the effective date would have been June [REDACTED], 2012. A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. See 38 U.S.C. § 1115. The effective date of an award of additional compensation for dependents based on the establishment of a 30 percent or more rating will be the latest of the following dates: (1) date of claim for dependency; (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 service member'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, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action. 38 U.S.C. § 5110 (f), (n); 38 C.F.R. § 3.401 (b)(1). The earliest date that an additional award of compensation for a dependent spouse can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. The United States Court of Appeals for Veterans Claims (Court) has noted that there is no freestanding claim for dependency benefits. Sharp v. Shinseki, 23 Vet. App. 267 (2009). The Court observed that although mindful of the role of finality in decisions regarding additional compensation for dependents, the status of dependents could be "ever changing." Id., at 276. The Court commented that a "determination of additional compensation for dependents that is well-settled for several years could require alteration in situations where a new child is born, the veteran and spouse divorce, or a dependent ages out or dies." Id. The disability evaluation also could affect the compensation for dependents. The Court stated that "Section 5110(f) (effective dates) and its corresponding regulation, 38 C.F.R. § 3.401 (b), appear to be unique in that they prescribe fluid effective dates based on dependents' changing circumstances and that they are ultimately linked to the underlying rating decisions meeting section 1115 requirements." Id. The Court held that the effective date for additional compensation for dependents shall be the same as that established in the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits. Id. In fact, the Court held there could be multiple rating decisions establishing entitlement to additional dependency compensation. Id. All that was required was that the proof of dependents be submitted within one year of the notice of the rating action. Id. In other words, 38 U.S.C. § 5110 (f) applies to any rating decision which meets the statutory criteria for increased compensation for dependents, not just the first decision which meets those criteria. Id. Analysis On June [REDACTED], 2012 the Veteran was married to his current wife. He did not notify VA of the marriage at that time or within one year. Although the Veteran had a pending claim for benefits and a December 2012 RO hearing, at which the Veteran's spouse attended and testified, he did not provide any proof of his marriage to VA or otherwise request that she be added to his pending award. The Veteran was awarded service connection for additional disabilities that led his combined rating to increase from 40 percent to 70 percent effective April 18, 2012 and then decreased to 60 percent effective April 1, 2014. Nonetheless, as the Veteran's award was over 30 percent, in a January 16, 2014 notification letter, the RO solicited any information the Veteran may have regarding the addition of dependents to his award. The Veteran was given one year to respond, but as of January 16, 2015, no response was provided. The Veteran had another claim for increased benefits pending at that time. In an April 2015 rating decision, the Veteran was awarded increased ratings for disabilities such that his previous combined 60 percent evaluation for his set of service connected disabilities was increased to 70 percent effective February 27, 2015. Again, because the Veteran's award was over 30 percent, an April 17, 2015 notification letter informed the Veteran that the RO determined that his compensation benefits were to be paid at the 70 percent rate for a single veteran with no dependents, and requested that the Veteran submit additional information concerning any dependents he desired to add to the award within one year. Several days later, on April 24, 2015, the Veteran submitted a copy of the June [REDACTED], 2012 marriage certificate and a request that the Veteran's spouse be added to his award. There was no earlier correspondence in this regard located in the claims file. In July 2015, the RO confirmed the addition of the Veteran's spouse to his award and, in accordance with 38 C.F.R. §§ 3.31 and 3.401 (b), assigned the date of March 1, 2015, the first day of the calendar month following the month in which the award became effective, after determining that the April 24, 2015 submission was the later of the events which can trigger an effective date for the addition of a dependent. The Board must determine whether an effective date earlier than March 1, 2015 is warranted for the award of additional compensation based on the dependent spouse. As noted above, effective dates for additional compensation for dependents will be the latest of the date of claim for dependency; the date the dependency arises; the effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or the date of commencement of the service member's award. 38 C.F.R. § 3.401 (b). Because the Board is unable to find that the Veteran provided notice of his marriage within one year after any rating action other than the April 2015 rating, no earlier effective date may be assigned regardless of the earlier dates when dependency arose or the earlier effective date of the qualifying disability rating. There is no indication in the claims file, prior to the April 24, 2015 submission, that the Veteran otherwise attempted to add his spouse to his award, despite the fact that it had been previously requested. Thus, the appropriate effective date for the award of additional benefits based on the Veteran's dependents is the first day of the calendar month after the award of benefits determined in the April 2015 rating action; date of commencement of the award. With regard to the Veteran's contention that VA had actual knowledge of his dependent spouse prior to March 1, 2015, and thus a clear and unmistakable error has been committed, a review of the record indeed shows that the Veteran identified his dependent spouse at his December 2012 RO hearing. However, the RO did not have any corroborating evidence of this, such as a marriage certificate. To the extent that the Veteran alleges a CUE, it is noted that CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE is a three-pronged test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992). Here, however, it is unclear with what actual decision the Veteran is alleging a CUE. To the extent that the Veteran may have alleged that CUE exists in any rating decision, including the January 2014 or February 2014 rating decisions, the Board finds that his request does not meet the required specificity of pleading, much less actually show that a CUE has occurred in either of those decisions. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) ("to raise CUE there must be some degree of specificity as to what the alleged error is and . . . persuasive reasons must be given as to why the result would have been manifestly different"). Rather, the Veteran merely seems to be asserting that the Decision Review Office who held his December 2012 hearing should have notified him of the need to submit a request for the addition of a dependent to the Veteran's compensation award, which does not actually involve any type of decision with which CUE could be alleged. The Veteran's statements referencing CUE otherwise do not specifically identify the decision that contains CUE. As the Veteran has not specifically asserted CUE in the January 2014 or February 2015 rating decisions, his motion is, thus, not actionable at present. ORDER Entitlement to an effective date earlier than March 1, 2015 for adding the Veteran's spouse to his award, to include as due to a CUE, is denied. ____________________________________________ M. E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs