Citation Nr: 19129682 Decision Date: 04/17/19 Archive Date: 04/16/19 DOCKET NO. 17-37 979 DATE: April 17, 2019 ORDER An effective date prior to January 3, 2017, for the addition of the Veteran’s spouse, W.D., as his dependent to his award of VA compensation benefits is denied. FINDING OF FACT The Veteran first notified the Department of Veterans Affairs (VA) of his marriage to W.D. on January 3, 2017. CONCLUSION OF LAW The criteria for an effective date prior to January 3, 2017 for the award of dependency benefits for the Veteran’s spouse, W.D., have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.401 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to November 1982 and from January 2004 to March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 3, 2017 administrative decision issued by the VA Evidence Intake Center. In the July 2017 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. The undersigned Veterans Law Judge has been assigned to adjudicate this appeal pursuant to 38 C.F.R. § 19.3(a). Effective Date for the Addition of the Veteran’s Spouse, W.D., as a Dependent An additional amount of compensation may be payable for a spouse, child, or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2). The Veteran has been in receipt of at least a 70 percent combined disability rating for service-connected disabilities since March 31, 2011. The term “spouse” means a person of the opposite sex whose marriage to the Veteran meets the requirements of 38 U.S.C. § 103(c); 38 C.F.R. § 3.1(j), which means a marriage valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. See 38 C.F.R. § 3.50(a). The “Certification of Excerpts from Marriage License” received in July 2017 confirms that the Veteran married W.D. on December 28, 2013 in Lackawanna County, Pennsylvania. Consequently, the Board finds that W.D. is the Veteran’s spouse for VA compensation purposes. When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates: (1) the date of claim; (2) the 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 one year of the event; otherwise, the date notice is received of the dependent’s existence, if evidence is received within one year of VA’s request. 38 U.S.C. § 5110; 38 C.F.R. § 3.401(b)(1). Here, the Veteran contends that he is entitled to an effective date prior to January 3, 2017 for additional dependency benefits. He seeks an effective date of either December 28, 2013 (the date of his marriage to W.D.) or July 2014 (when he uploaded pertinent information into a Department of Defense database, discussed infra) for the addition of his spouse as his dependent to his award of VA disability compensation. See March 2017 VA for 21-0958, Notice of Disagreement. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than January 3, 2017 for the addition of W.D. as the Veteran’s dependent to his award of VA disability compensation. There is nothing in the record prior to that date that would serve to inform VA of the Veteran’s marriage to W.D. As such, the RO has already assigned the earliest possible effective date for the addition of W.D. as the Veteran’s dependent to his award of VA compensation benefits. The Veteran asserts that in July 2014 he went to his local Navy Center and uploaded necessary documentation regarding his December 28, 2013 marriage to W.D.to the DEERS (Defense Enrollment Eligibility Reporting System) and later confirmed with Navy Center personnel that the marriage information was in the DEERS database. See March 2017 VA form 21-0958, Notice of Disagreement. He believed that this was sufficient and that he did not have to separately report his marriage to VA because DEERS would forward this information to VA. This assumption was mistaken as his report to DEERS did not serve as notice to VA of the change in dependency status, as DEERS is a system used solely by the Department of Defense and is entirely separate and unrelated to VA. In the March 2017 Notice of Disagreement, the Veteran contended that after supplying DEERS with his marital information, he was “unaware of any additional forms that needed to be filled out” regarding adding his dependent spouse to his award of VA compensation benefits. This assertion lacks credibility given that the record contains VA notification letters dated in January 2012 and May 2012 that informed him of the legal requirements necessary to add dependents to his award of VA compensation benefits. While these notification letters were received more than one year prior to his marriage to W.D., the Veteran was in receipt of adequate notice regarding the proper method of adding dependents to his award of VA compensation benefits. In the March 2017 Notice of Disagreement, the Veteran alleged that the DEERS operator at the Navy Center did not inform him that additional steps were necessary to add W.D. as a dependent to his VA compensation benefits. There is no indication that this DEERS operator was an employee of VA with knowledge of the requirements regarding VA dependency status changes, especially considering DEERS is not a VA operating system. Regardless, the law does not give any weight to wrongful advice provided by individual government employees. “Erroneous advice given by a government employee cannot be used to estop the government from denying benefits.” McTighe v. Brown, 7 Vet. App. 29, 30 (1994); see also Walker v. Brown, 8 Vet. App. 356, 359 (1995). The Veteran has also alleged he had “no way of knowing DEERS did not talk to the VA or share files.” See July 2017 VA form 9, Substantive Appeal. The Veteran could have contacted his local VA Regional Office for assistance, and, as noted supra, the January 2012 and May 2012 VA notification letters notified him that VA form 21-686c was required to process a spousal dependency claim. This lay assertion holds no weight when compared to other documentary evidence in the record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, facial plausibility, internal inconsistency, and consistency with other evidence of record). VA did not receive a claim seeking addition of W.D. as a spousal dependent until January 3, 2017, when a completed VA form 21-686c, Declaration of Status of Dependents, was received. There is no indication in the electronic claims file that VA was aware of the Veteran’s marriage to W.D. prior to this date. As evidence of the Veteran’s marriage was not received by VA within one year of the event, the date of marriage cannot serve as the date of claim in this determination. 38 C.F.R. § 3.401(1)(i). Instead, the date of claim is January 3, 2017, when VA first received notice of the dependent’s existence. 38 C.F.R. § 3.401(1)(ii). This is the earliest effective date under the law for the addition of W.D. as a spousal dependent. The Board sympathizes with the Veteran regarding the inequities he believes result in not being entitled to spousal dependent benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. § 503; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress.” See Smith v. Derwinski, 2 Vet. App. 429, 433 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). Based on the foregoing, the claim of entitlement to an effective date prior to January 3, 2017, for the addition of W.D. as the Veteran’s spousal dependent to his award of VA compensation benefits must be denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel