Citation Nr: 20002963 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-55 227 DATE: January 14, 2020 ORDER An effective date of September [REDACTED], 2015, for the award of additional compensation for a dependent spouse, J.V., is denied An effective date of September [REDACTED], 2015, the grant of eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. chapter 35 is denied. REMANDED An award of additional compensation for a dependent step child, R.L. FINDINGS OF FACT 1. The Veteran served on active duty from February 2004 to April 2009, he has been 100 percent disabled since September 2016. 2. On March 27, 2017, the Veteran informed VA of his June 2014 divorce from C.V. and his September [REDACTED], 2015 marriage to his current spouse, J.V. 3. Prior to September 13, 2016, a permanent and total disability rating was not in effect. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 13, 2016, for the award of additional compensation for a dependent spouse, J.V., have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.31, 3.400, 3.401(b) (2018). 2. The criteria for an effective date prior to September 13, 2016, for the grant of eligibility to DEA under 38 U.S.C. chapter 35 have not been met. 38 U.S.C. §§ 1155, 3500, 3501, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.340, 3.341, 3.400, 3.401 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2019 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. A September 2017 rating decision indicated that the Veteran’s former spouse, C.V., was removed from his dependency award effective July 1, 2014, that the Veteran’s current spouse, J.V., was added to his dependency award, effective September 13, 2016, and that VA could not pay for dependents R.L. and D.L. because they were both over age 18 and in receipt of DEA benefits. Subsequent documents in the claims file shows that DEA benefits were awarded for R.L. and D.L. effective September 13, 2016. While the September 2017 statement of the case (SOC) indicated that the second issue on appeal was “entitlement to an effective date of September [REDACTED], 2015 for the addition of your step-children, [D.L. and R.L.], to your compensation award,” the record clearly indicates that D.L. and R.L. were not added to the compensation award; however, as noted, DEA benefits were awarded for D.L. and R.L. effective September 13, 2016. As such, the issue has been recharacterized as noted on the title page of this decision. Earlier Effective Date for Dependent Spouse Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The statute and regulations specifically provide that 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); 38 C.F.R. § 3.401(b)(3). The effective date of the award of any benefit or any increase therein by reason of marriage shall be the date of such event, if proof of such event is received by the Secretary within one year from the date of marriage. 38 U.S.C. § 5110(n); 38 C.F.R. § 3.401(b)(1)(i). Regarding an award of additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, the effective date 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 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, it is 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. An additional amount of compensation may be payable for a spouse when a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. § 1115(1)(A); 38 C.F.R. § 3.4(b)(2). As an initial matter, the Veteran has met the criteria for entitlement to additional compensation for a spouse based on disability evaluated as 30 percent or more disabling since April 28, 2009. He is seeking an earlier effective date for the VA recognition of his marriage to J.V. Historically, and according to the Veteran’s March 27, 2017, VA Form 21-686c, he and C.V. married in June 2000 and divorced in June 2014. He and J.V. married on September [REDACTED], 2015. Although he did not submit a copy of his divorce papers to VA, he credibly testified that he and C.V. divorced in June 2014. A Certificate of Marriage confirms that he married J.V. in September 2015. The RO awarded dependency benefits for J.V. effective September 13, 2016, which was noted to be the date of the most recent rating. The Veteran has acknowledged that he did not inform VA of his divorce and re-marriage until he submitted the March 27, 2017, VA Form 21-686c. Nonetheless, he contends that the effective date should be the date of his marriage to J.V. in September 2015 because he did not know that he needed to inform VA of the change in his spousal information within a year of his new marriage/a specified period of time. Although the Veteran asserts that he was unaware that he needed to notify VA, a review of the record reflects that he was provided correspondence in June 2009, when he first received VA benefits, that he should let VA know right away if there was any change in the status of his dependents. Accordingly, the evidence shows that the Veteran did not provide the proper documentation and information regarding his marriage to J.V. until March 27, 2017, more than one year after his marriage. Based on current laws and regulations, the RO appropriately determined that J.V. could not be added as the dependent spouse from the date of their marriage on September [REDACTED], 2015, because the claim was not timely received within a year from the date of the marriage. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. The appeal is denied. Earlier Effective Date for Dependents’ Educational Assistance Survivors’ and Dependents’ Educational Assistance under Chapter 35, Title 38, of the United States Code, is a program of education or special restorative training that may be authorized for an eligible person, such as a surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of DEA exists if the veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the veteran’s death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807. DEA was awarded for R.L. and D.L. effective September 13, 2016, based upon the Veteran being in receipt of a 100 percent rating at that time, and therefore, he met the requirement of a permanent total service-connected disability under 38 C.F.R. § 3.807(c). He is not in receipt of a 100 percent rating based on permanent total service-connected disability prior to September 13, 2016, and as the record does not show receipt of a claim for dependents educational benefits/Ch 35 prior to September 13, 2016, entitlement to an earlier effective date for DEA benefits is not warranted. The appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).   REASONS FOR REMAND In his September 2017 notice of disagreement, the Veteran appealed the September 2017 decision to deny additional compensation for dependent step child R.L. To date, no statement of the case (SOC) has been issued which addresses the issue involving entitlement to additional compensation for dependent step child R.L. Accordingly, a remand of this matter is required such that the requisite SOC may be issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Provide the Veteran with an SOC addressing the issue of entitlement to additional compensation for dependent step child R.L. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed. If a substantive appeal is timely filed, the perfected issue should be returned to the Board. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.