Citation Nr: 20009899 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-49 421 DATE: February 6, 2020 ORDER An effective date of April 30, 2012, but no earlier, for the addition of the Veteran’s current spouse, P., to his award of Department of Veterans Affairs (VA) disability compensation is granted. An effective date subsequent to January 1, 1986 for the removal of the Veteran’s former spouse, S., from his award of VA disability compensation is denied. FINDINGS OF FACT 1. The Veteran and S. were divorced in December 1985. 2. On April 30, 2012, the Veteran first informed VA of that he and P. were married in October 1991. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 30, 2012, but no earlier, for the addition of the Veteran’s current spouse, P., to his award of VA disability compensation, have been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2018). 2. The criteria for an effective date subsequent to December 20, 1985 for the removal of the Veteran’s former spouse, S., from his award of VA disability compensation have not been met. 38 U.S.C. §§ 5107, 5112 (2012); 38 C.F.R. § 3.501(d) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1962 to August 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and P. testified at a January 2020 Board Videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an effective date prior to November 3, 2014 for the addition of the Veteran’s spouse, P., to his award of VA disability compensation. Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). 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 a dependent spouse 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; 38 C.F.R. § 3.401. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). The Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits. See 38 U.S.C. § 501. If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b). If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application. 38 U.S.C. § 5102(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. 38 U.S.C. § 5107(a). VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person. 38 U.S.C. § 5124; 38 C.F.R. § 3.204. Here, the Veteran has stated that he is entitled to an effective date prior to November 3, 2014 for the addition of his current spouse, P., to his award of VA disability compensation. In April 2012, the Veteran notified VA that he married his current spouse, P., in October 1991. See April 2012 Status of Dependents form and statement. In November 2014, the Veteran again notified VA of his marriage to P. See November 2014 VA Form 21-686c, Declaration of Status of Dependents. Thereafter, in an April 2015 decision, the RO added P. to the Veteran’s award of VA disability compensation, effective November 3, 2014. In April 2015, the Veteran asked the RO to reconsider the April 2015 decision. In the February 2016 decision on appeal, the RO confirmed and continued the April 2015 decision that assigned an effective date of November 3, 2014 for the addition of P. to the Veteran’s award of VA disability compensation. The Board has reviewed all relevant evidence and finds that an effective date of April 30, 2012, but no earlier, is warranted for the addition of the Veteran’s current spouse, P., as his dependent to his award of VA disability compensation. This is based on the Status of Dependents Questionnaire that was received by VA on April 30, 2012, and submitted in response to VA’s February 2012 letter asking the Veteran to provide updated information about his dependents. However, there is nothing in the record to support an effective date prior to April 30, 2012 for the addition of the Veteran’s current spouse, P., as his dependent to his award of VA disability compensation. The Board recognizes that the Veteran believes his marriage date should be the effective date. The Veteran had one year from his October 1991 marriage to notify VA of the marriage in order for the date of claim to be considered the date of marriage. However, the Veteran did not inform VA of his marriage to P. until April 2012, which is well outside that one-year period. There is nothing in the record prior to that date that serves to inform VA of the Veteran’s marriage to P. To the contrary, a January 2004 VA Form 119, Report of Contact, indicated that the Veteran was still married to S., and listed her birthday and social security number. The January 2004 VA Form 119 is the only evidence of record regarding the Veteran’s spouse for the period from August 1979 to February 2012. See August 1979 VA Form 21-686c; February 2012 Status of Dependents Questionnaire. As such, the Board has already assigned herein the earliest possible effective date for the addition of P. as the Veteran’s dependent to his award of VA disability compensation. The Board acknowledges the Veteran’s statements regarding the issues he had for numerous years related to updating his address with VA and not receiving correspondence or payments, and the confusion that resulted as to the status of his dependents. See January 2020 Board hearing testimony; April 2015 statement. In addition, the Board recognizes the Veteran’s testimony regarding issues with his representative not submitting the necessary evidence of his divorce and remarriage many years earlier, when his disability payments were reinstated after being suspended. See January 2020 Board hearing testimony. However, an effective date can only be granted based on claims and evidence that were actually received by VA and added to the Veteran’s claims folder. For these reasons, there is no legal basis upon which to grant an earlier effective date. The Board sympathizes with the Veteran regarding the inequities he believes result in not being entitled to those 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, 7104; 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, 432-33 (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). Hence, the appeal is denied as to an effective date earlier than April 30, 2012. 2. Whether the Veteran’s former spouse, S., was properly removed from his award of VA disability compensation effective January 1, 1986. The Veteran contends that his former spouse, S., was not properly removed from his award of VA disability compensation effective January 1, 1986. The effective date of a reduction in compensation benefits based on divorce is the first day of the month following the month of divorce. 38 U.S.C. § 5112(b)(2); 38 C.F.R. § 3.501(d)(2). The facts in this case are not in dispute. In April 2012, the Veteran first notified VA that he was no longer married to S. See April 2012 Status of Dependents form and statement. In November 2014, the Veteran notified VA that he and S. were divorced in December 1985. In April 2015, the Veteran submitted a copy of a Final Judgement of Divorce from an Alabama state court, indicating that he and S. were divorced in December 1985. In April 2015 and February 2016 decisions, the RO removed S. from the Veteran’s award of VA disability benefits, effective January 1, 1986, the first day of the month after the date of the divorce. As such, the RO has already assigned the proper effective date for the removal of S. as the Veteran’s dependent spouse from his award of VA disability compensation. Consequently, there is no legal basis upon which to grant an effective date subsequent to January 1, 1986, for the removal of S. as the Veteran’s dependent spouse from his award of VA disability compensation. Hence, the appeal is denied. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.