Citation Nr: 21000978 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-28 703 DATE: January 6, 2021 ORDER Entitlement to an effective date prior to June 26, 2006, for the addition of the Veteran’s spouse, D.A., as his dependent to his award of Department of Veterans Affairs (VA) disability compensation is denied. FINDINGS OF FACT 1. In February 2008, the Veteran informed the VA Regional Office (RO) that he married his wife, D.A., in December 2005. 2. The RO awarded dependency benefits for D.A., effective June 26, 2006, earlier than when VA was informed of his marriage to D.A. CONCLUSION OF LAW The criteria for an effective date prior to June 26, 2006, for the award of dependency benefits for the Veteran’s spouse, D.A., are not met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.31, 3.401 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1983 to May 1986 and from February 1991 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 notification letter of a VA Regional Office (RO). In September 2018, the Board remanded the Veteran’s claim for the issuance of a statement of the case (SOC). The RO inadvertently sent a Supplemental SOC, rather than an SOC in September 2019. An SOC was issued in June 2020 and the Veteran was notified that his appeal was certified to the Board in August 2020. In December 2020, the Veteran’s representative filed an informal hearing presentation (IHP) in December 2020 providing arguments as to the issue listed above. Although the Veteran’s representative did not file the IHP within 60 days of the SOC, the Board finds that the appeal was duly perfected because the Veteran was led to believe his appeal was proper because the RO sent the Veteran and his representative a supplemental SOC and the appeal was certified for the issue. In a June 2020 notification letter, the RO awarded an earlier effective date of June 26, 2006, for the addition of D.A. as a dependent for VA compensation purposes, explaining that the Veteran submitted all the required information and met the eligibility requirements for the dependency allowance. Thus, the Board has recharacterized the issue to reflect the award of the earlier effective date. Earlier Effective Date for Dependency Award 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 law provides for the rates of disability compensation, and for payment of additional compensation for dependents of veterans who are at least 30 percent disabled. 38 U.S.C. §§ 1114(c), 1115, 1134, 1135. The Veteran was, at all times relevant to this issue and the period of time in question, rated appropriately to receive additional compensation for a spouse. The effective date for additional compensation for a dependent spouse will be the latest of the following dates: 1) the date of the marriage, if the claim is received within one year of the marriage; 2) the date notice is received of the dependent spouse’s existence; 3) the date dependency arises; 4) the effective date of a qualifying disability rating provided evidence of dependency is received within one year of notification of such action; or 5) the date of commencement of a veteran’s award. 38 U.S.C. § 5110(f); 38 C.F.R. § 3.401(b). The earliest that the additional award of compensation for a dependent spouse may be paid to the Veteran is the first day of the month following the effective date. 38 C.F.R. § 3.31. The Veteran has requested an earlier effective date for the award of dependency benefits for his wife, D.A. He argues that VA was informed of his marriage to D.A. in 2005, within one year of his marriage. Turning to the evidence of record, in a May 1997 VA Form 21-686c Declaration of Status of Dependents, the Veteran indicated that he was married to M.M. He provided a marriage certificate reflecting that he married M.M. in May 1991. In a June 1997 notification letter, he was awarded additional benefits for M.M. and he was informed that he must immediately inform VA of any change in the number of status of his dependents. In January 1998 and December 2004 letters, the Veteran was informed again to immediately inform VA in any change in the number of and status of his dependents. In a July 2005 VA Form 21-0538 Mandatory Status of Dependents, the Veteran indicated that he married M.H. in February 2005. November 2005, March 2007, and November 2007 VA 21-8947 Compensation and Pension Award documents reflect M.M. was still listed as his spouse. In December 2005, November 2007, and January 2008 letters, the Veteran was informed again to immediately inform VA in any change in the number of status of his dependents. A May 2008 Report of Contact reflects the Veteran reported that he needed to change his spouse to D.A., whom he married in December 2005. The RO indicated that M.M. was on file as the Veteran’s spouse whom he divorced in June 2004 and that he was married to M.H. from April 2005 to September 2005. A January 2010 Award Print screen reflects M.M. was still listed as his spouse. The Veteran again informed the RO in a July 2013 Status of Dependents Questionnaire that he married to D.A. in December 2005. In a May 2014 VA 21-686c Application Request To Add And/Or Remove Dependents, the Veteran indicated that he married D.A. in December 2005 and that he divorced M.M. in June 2004 and that he also previously married M.H. in September 2004 with that marriage annulled in October 2005. In March 2015, the Veteran provided a marriage certificate reflecting his marriage to D.A. in December 2005. He also provided a marriage certificate to M.H., which indicated he married her in February 2005. In a May 2015 notification letter, the Veteran was awarded additional compensation for his spouse, D.A., effective June 1, 2008, the first day of the month after he reported his marriage to her. As noted above, in a June 2020 notification letter, the RO awarded an earlier effective date of June 26, 2006, for the addition of D.A. as a dependent for VA compensation purposes, In a December 2020 IHP, the Veteran’s representative contended that an effective date prior to June 1, 2008, for the addition of the Veteran’s spouse, D.A., as his dependent to his award of VA disability compensation is warranted. The representative appears to have not received the June 2020 notification letter that granted an earlier effective date of June 26, 2006. Considering the evidence of record in light of the above cited legal authority, the Board finds that no earlier effective date is assignable. As indicated above, there is no correspondence received from the Veteran prior to February 2008 regarding his marriage to D.A. Despite notifying VA of his marriage to D.A. at that time, the RO has awarded an effective date in June 2006, a date earlier than permitted by law. Although the Veteran has asserted that he notified VA of his marriage to D.A. in 2005, as noted above, the only correspondence received from the Veteran was in July 2005 when he notified VA that he was married to M.H. Here, the initial documented contact from the Veteran was in February 2008 when he indicated that he married D.A. in December 2005, followed by the July 2013 VA Form 21-0538 Mandatory Status of Dependents. Based on current laws and regulations, the RO appropriately determined that D.A. could not be added as the Veteran’s dependent spouse from the date of marriage in December 2005, because information of dependency had not been received within a year from the date of marriage. The evidence shows that the Veteran was provided ample notice indicating that it was his responsibility to inform VA of any change in the status of his dependents. The Veteran did not do so until February 2008, over two years after his marriage. However, as noted above, VA has awarded him additional compensation for his dependent spouse D.A. since June 2006, earlier than when VA was informed of his marriage to D.A. As there is no evidence that VA was informed of the Veteran’s marriage to D.A. prior to the current effective date of June 2006, the claim must be denied. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Although the Board is required to “render a decision which grants every benefit that can be supported in law,” under these circumstances, there is no basis in law to grant the appeal for an earlier effective date for the award of dependency benefits. See 38 C.F.R. § 3.103(a). Accordingly, the claim on appeal must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As noted, Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefit, and the Board has no authority to create exceptions, or to overturn or to disregard the very specific limitations on the assignment of effective dates. See 38 U.S.C. § 7104(a); Harvey v. Brown, 6 Vet. App. 416, 423 (1994) (payments of money from the Federal Treasury are limited to those authorized by statute). Moreover, the Board cannot grant the benefit sought on an equitable basis, as “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.