Citation Nr: 19148167 Decision Date: 06/19/19 Archive Date: 06/19/19 DOCKET NO. 18-25 286 DATE: June 19, 2019 ORDER Entitlement to an effective date prior to January 12, 2016, for adding the Veteran’s current spouse and children dependents to his award is denied. FINDING OF FACT VA first received notice of the Veteran’s dependent current spouse and dependent children on January 12, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to January 12, 2016, for the award of additional compensation for a dependent current spouse and two dependent children have not been met. 38 U.S.C. §§ 1115, 5101, 5110; 38 C.F.R. §§ 3.4, 3.31, 3.400, 3.401 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1990 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2017 rating decision. 1. Entitlement to an effective date prior to January 12, 2016 for adding the Veteran’s current spouse and children dependents to his award is denied. The Veteran is seeking an earlier effective prior to January 12, 2016, for the award of additional compensation for his dependent spouse and children. For the following reasons, entitlement to an effective date prior to January 12, 2016, for adding the Veteran’s current spouse and children dependents to his award is denied. Legal Standard Veterans having service-connected disabilities that are compensated at 30 percent or more may be entitled to additional compensation for a dependent spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school) or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect. 38 U.S.C. § 1135; 38 C.F.R. § 3.4 (b)(2). The effective date for the award of additional compensation for dependents 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) (2018). The “date of claim” for additional compensation for dependents is either (1) 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; or (2) the date notice is received of the dependent’s existence, if evidence is received within a year of notification of VA’s request. 38 C.F.R. § 3.401 (b)(1). The earliest that the additional award of compensation for a dependent spouse can occur is the first day of the month following the effective date. 38 C.F.R. § 3.31. Legal Analysis and Conclusion Here, on January 12, 2016, VA received the Veteran’s completed, signed Declaration of Status of Dependents, notifying VA of the Veteran’s 2004 remarriage to his new spouse and subsequently born children. See VA 21-686c Form. Next, the dependency for the current spouse arose on April [Redacted], 2004, the date of the Veteran’s and current spouse’s marriage. The latter date between the date of claim (January 12, 2016) and the date dependency for the current spouse arose (April [Redacted], 2004) is the date of claim, which is January 12, 2016. Therefore, under VA law, the appropriate effective date for the Veteran’s dependent current spouse is January 12, 2016. Similarly, the dependency for the children arose on their dates of birth, which were November 1, 2005, for H, and January 1, 2007, for Z. The latter date between the date of claim (January 12, 2016) and the date dependency for the children arose (November 1, 2005, for H, and January 1, 2007, for Z) is the date of claim, which is January 12, 2016. Therefore, under VA law, the appropriate effective date for the Veteran’s two children is January 12, 2016. In an August 2017 Notice of Disagreement, the Veteran asserted that he was not advised by VA after his 2004 remarriage to his current spouse that he must file claims to add his dependents within any certain timelines. See Notice of Disagreement. As an initial matter, the Board notes that the Veteran was sent a Notification Letter back in October 1999, when he was first granted an overall or combined disability evaluation of 50 percent. The Notification Letter explicitly instructs how to complete a claim for dependents and states that information on dependents (if any) should be submitted within 60 days and that if his response is received after one year from the date of this letter, VA will not be able to pay any “back benefits.” See Notification Letter. However, the Board also recognizes that the October 1999 Notification Letter involved the last time the Veteran was awarded any new compensation, prior to submitting his Declaration of Status of Dependents in January 12, 2016. While a rating decision was subsequently issued in December 1999, in that decision, the RO declined to increase any current disability rating. Nevertheless, and significantly, between the time he received the October 1999 Notification Letter and submitted his Declaration of Status of Dependents in January 12, 2016, the Veteran did not notify VA that he married in 2004 or that he subsequently had children. There is also nothing otherwise in the record that would have provided such notice to VA; specifically, that during that time period the Veteran had remarried and subsequently had children. The Veteran’s children’s birth certificates were received by VA on January 26, 2016, and the Veteran’s marriage certificate was received by VA on February 12, 2016. In sum, there is nothing in the record that would indicate the existence of his current spouse or biological children any earlier than January 12, 2016, when VA received the Veteran’s Declaration of Status of Dependents, which stated so. (Continued on the next page)   Thus, based on the foregoing, an effective date prior to January 12, 2016, cannot be granted. While the Board is sympathetic to the Veteran, it is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c). There is no legal basis by which to assign an effective date earlier than January 12, 2016. The benefit-of-the-doubt doctrine does not apply because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.