Citation Nr: 19155149 Decision Date: 07/17/19 Archive Date: 07/16/19 DOCKET NO. 18-52 562 DATE: July 17, 2019 ORDER An effective date earlier than June 22, 2018 for additional compensation for the Veteran's dependent spouse is denied. FINDINGS OF FACT 1. The Veteran was notified that his claim of dependency was denied as incomplete on August 3, 2016 because VA required documentation of his prior divorces. The Veteran did not submit the required documentation and did not otherwise appeal this decision within twelve months of its issuance, it therefore became final. 2. A completed claim of dependency, and therefore a claim to reopen, was received on June 22, 2018. CONCLUSION OF LAW The criteria for an earlier effective date for the addition of the Veteran’s spouse as a dependent entitled to compensation have not been met. 38 C.F.R. § 3.401 (b)(1). 38 U.S.C. § 1115. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from July 2004 to April 2012. This matter is before the Board of Veterans Appeals (Board) on appeal from an August 2016 decision. Entitlement to an effective date earlier than June 22, 2018 for additional compensation for the Veteran's dependent spouse Legal Criteria for an Earlier Effective Date for Dependency Benefits 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 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). If a claimant’s application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within one year from the date of such notification, compensation will not be paid by reason of that application. 38 C.F.R. § 3.109 (a)(1). The provisions of this regulation are applicable to original applications and applications for increase based on dependents. 38 C.F.R. § 3.109 (a)(2). When evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. § 1805 based on such evidence shall commence not earlier than the date of filing of the new claim. 38 C.F.R. § 3.158. Payment of monetary benefits are to commence on the first of the month following the effective date of the award. 38 U.S.C. § 5111; 38 C.F.R. § 3.31. 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. Factual Background On May 19, 2016 VA received a completed Declaration of Status of Dependents (VA Form 21-686c) from the Veteran seeking to add his spouse W.A. as a dependent. The record reflects that VA made three separate attempts to contact the Veteran by phone to request documentation of the Veteran’s two divorce decrees from his prior two marriages. See June 10th, 11th and 13th Reports of General Information (VA Form 27-0820). A July 2016 MAP-D Development Letter informed the Veteran that VA required documentation of his divorce decrees to process his application to add his current spouse as a dependent entitled to compensation. The Veteran was notified in a July 2016 Notification Letter (VA 21-0290) that VA had accepted his application for additional dependency because his child A.S.C. met the criteria for establishing a relationship. His current spouse W.A. was not listed as a dependent entitled to compensation. An August 2016 the Notification Letter (VA 21-0290) informed the Veteran of VA’s decision to close his claim to add W.A. as a dependent spouse. He was notified that he could submit evidence of his previous divorces within one-year from the date of the letter to be eligible for retroactive benefits. He was also advised that failure to provide the required evidence within a one-year period would result in ineligibility for retroactive benefits. The required divorce decrees were received on June 2018 with a new Declaration of Status of Dependents (VA Form 21-686c) again claiming W.A. as a dependent spouse. An accompanying statement from the Veteran asserted that his May 2016 Declaration of Status of Dependents (VA Form 21-686c) was “never processed” and that compensation should be backdated to that date. In his November 2018 Substantive Appeal the Veteran claimed that no correspondence from VA requesting any documentation to complete his May 2016 submission was “sent or received” and asked that compensation be backdated to May 19, 2016. Analysis The Veteran was notified in the August 2016 notification letter that VA required documentation of his prior divorce decrees. The Veteran did not submit the requested documentation within the specified time-period. As discussed above, if the evidence is not received within one year from the date of such notification, compensation will not be paid by reason of that application. 38 C.F.R. § 3.109 (a)(1). Moreover, it is VA’s duty to ensure that payment of benefits is based on the current state of the Veteran’s dependents. See 38 C.F.R. § 3.652 (a). Further, although the Board acknowledges the Veteran’s contentions that he did not receive the August 2016 notification letter and did not know he needed to submit more information, the Board highlights that the correspondence was mailed to the correct address of record, was not returned as undeliverable, and clearly stated what documentation VA needed the Veteran to provide. Additionally, the Veteran has not contended that he was unable to respond to the notification letters because of physical or mental incapacity due to his service-connected disabilities. Based on the evidence above, the Board finds that the earliest effective date of claim for dependency is June 22, 2018. Although the Veteran was potentially eligible for additional dependency compensation since May 19, 2016, the Veteran did not submit the information required to pursue a claim for dependents until June 22, 2018. As such, the date of the completed claim of dependency controls the effective of entitlement to additional dependency compensation here. 38 C.F.R. § 3.401(b)(1). Accordingly, there is no legal basis for awarding an effective date prior to June 22, 2018. As law, not facts, is dispositive of the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet App. 49 (1990). Thus, this claim must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McKone, Attorney for the Board 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.