Citation Nr: 20009983 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-14 748 DATE: February 6, 2020 ORDER Entitlement to an effective date earlier than July 20, 2018, for additional dependency benefits for the Veteran's spouse is denied. FINDING OF FACT The Veteran notified VA of the existence of the marriage to his current spouse on July 20, 2018. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 20, 2018, for additional dependency benefits for the Veteran's spouse have not been met. 38 U.S.C. §§ 1115, 5110(f), (n); 38 C.F.R. §§ 3.31, 3.401(b). REASONS AND BASES FOR FINDING AND CONCLUSION The October 2018 Decision Letter now on appeal awarded entitlement to additional dependency benefits for the Veteran’s spouse and denied entitlement to additional educational benefits for the Veteran’s minor child, Y.M. The Veteran timely appealed the effective date of the former and denial of the latter in his January 2019 Notice of Disagreement (NOD). VA subsequently granted, in a May 21, 2019, Decision Letter, entitlement to additional educational benefits for Y.M. One day prior, the Veteran submitted his VA Form 9, on which he challenges both the effective date for the award of dependency benefits for his spouse and educational benefits for Y.M. The latter issue, however, properly is not before the Board. Because VA granted the Veteran entitlement to dependency benefits in the May 21, 2019, letter, VA extinguished the appeal as to that issue. Should the Veteran wish to contest the effective date for the award of additional educational benefits for Y.M., then he should file a proper appeal to that letter within the time prescribed by the applicable regulations. See 38 C.F.R. §§ 19.52, 20.202, 20.203, 20.1103. The Veteran served in the Army National Guard from July 28, 1981, to April 1, 1985; on active duty from April 2, 1985 to March 3, 1988; in the Army Reserve from March 4, 1988, to May 29, 1992; and on active duty from May 30, 1992, to October 31, 2016. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 Decision Letter by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 38 U.S.C. § 1115 authorizes the payment of additional compensation for dependents of a veteran rated at least 30 percent disabled. The effective date for the award of additional compensation for a dependent is the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action; or (4) date of commencement of veteran’s award. 38 U.S.C. § 5110(f), (n); 38 C.F.R. § 3.401(b)(1)–(4). Here, the date of claim means: (i) date of veteran’s marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within one year of the event; otherwise (ii) date notice is received of the dependent’s existence, if evidence is received within one year of VA’s request. 38 C.F.R. § 3.401(b)(1)(i)–(ii). Commencement of payment for disability compensation begins the first day of the month following the effective date. 38 C.F.R. § 3.31. The record shows that the Veteran married his current spouse on October 7, 1992. See July 20, 2018, VA Form 21-686c. A February 2017 rating decision awarded the Veteran service connection for a variety of conditions, which equated to a 90 percent disability rating effective November 1, 2016. The Veteran was notified of that decision by letter, which informed him that he may be entitled to additional dependent compensation if he submitted a claim for such within a year from the date of that letter. See February 6, 2017, Notification Letter at 16. An April 2017 rating decision awarded the Veteran service connection for two more conditions, and he was notified of that decision by letter, which similarly informed him that he may be entitled to additional dependent compensation if he submitted a claim for such within a year from the date of that letter. See April 18, 2017, Notification Letter at 5. The Veteran filed his Declaration of Status of Dependents (VA Form 21-686c) on July 20, 2018. This is the first communication VA received regarding the Veteran’s marriage to his current spouse. In May 2019, a representative spoke to the Veteran regarding this claim. The representative informed the Veteran that he failed to include any information indicating he was married when he filed his first service connection claim in November 2016 and also failed to submit within one year of the 2017 rating decisions any information regarding his dependent spouse. See May 2, 2019, VA Form 27-0820 (“Veteran explained that he knows he didn’t submit [the information] on time . . . .”). Since the Veteran married his current spouse long before he ever had at least a 30 percent disability rating, the effective date cannot be the date dependency arose. See 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b)(2). Moreover, the Veteran admits that his July 20, 2018, VA Form 21-686c is the first correspondence to VA, indicating his marriage to his current spouse, which is more than one year from the February 6, 2017, and April 18, 2017, Notification Letters. Thus, entitlement to additional dependency benefits for the Veteran’s spouse cannot be the effective date of his 90 percent disability rating. See 38 C.F.R. § 3.401(b)(3). Therefore, the effective date either is the date of claim or the date of commencement of the Veteran’s award, whichever is later. Because the Veteran’s effective date for his 90 percent rating was effective as of November 1, 2016, the commencement of his award is December 1, 2016. See 38 C.F.R. § 3.31. In this case, the date of claim is July 20, 2018: the date the Veteran filed his VA Form 21-686c and first notified VA of the existence of his current spouse. Between those two dates, the later date is July 20, 2018. Therefore, the Veteran was awarded the proper effective date, and his appeal on this issue is denied. See 38 C.F.R. § 3.401(b)(1)(ii), (4). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.