Citation Nr: 21065038
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 19-10 265
DATE: October 22, 2021

ORDER

An earlier effective date of March 1, 2007, for the addition of the Veteran's spouse, as a dependent on his award of disability compensation is granted.

FINDINGS OF FACT

1. The Veteran's March 2007 initial claim for VA compensation, to include for hearing loss, included a claim for recognition of his spouse, as his dependent for VA purposes, via supporting information about the dependent.

2. In a July 2016 rating decision, the Veteran was first awarded a combined disability rating of at least 30 percent, effective March 1, 2007.

CONCLUSION OF LAW

The criteria for an earlier effective date of March 2007 for the addition of the Veteran's spouse as a dependent on his award of disability compensation are met. 38 U.S.C. §§ 1115, 5107(b), 5110; 38 C.F.R. §§ 3.4, 3.102, 3.155, 3.204, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from January 1955 to September 1960. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 determination letter by a Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has previously been before the Board. In a June 2019 decision, 

the Board denied the Veteran's claim for an effective date earlier than April 1, 2018, for the grant of dependency benefits. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court vacated the June 2019 Board decision and remanded the matter to the Board for it to make factual determinations as to whether the Veteran's August 2016 submission of a check from his joint account with his spouse, along with the information provided in his initial claim regarding his spouse, did not establish dependency.

An earlier effective date prior to April 1, 2018, for the addition of the Veteran's spouse, as a dependent on his award of disability compensation.

Earlier Effective Date

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).

In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits, if proof of dependents is submitted within one year of notice of the rating action. While the Court held that there can be "multiple rating decisions that establish entitlement to additional dependency compensation," the Court still required that proof of dependent status be submitted within one year of notice of rating action. Id. Dependent compensation benefits were ultimately awarded to the appellant in Sharp on the effective date of the applicable rating increase.

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.

In the instant case, the Veteran filed an initial claim for service connection in March 2007. The Veteran reported that he and his spouse were married in December 1997. See 3/1/2007 VA 21-526. The Board finds that this was his initial claim for recognition of his spouse as his dependent for VA purposes.

As noted above, 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). In a July 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hearing loss and tinnitus, resulting in a combined disability rating of 60 percent, effective March 1, 2007. However, the AOJ did not adjudicate the Veteran's claim for recognition of his spouse as his dependent for VA purposes. To the contrary, 

the AOJ informed the Veteran that he was being paid as a single veteran with no dependents and he would need to submit VA Form 21-686c if he wanted to apply for dependents' benefits. See 7/26/2016 Notification Letter.

Within a year of the July 2016 notification letter, in October 2016, the Veteran filed a Direct Deposit Enrollment with an attached check, which reflected that his wife was one of the account holders. See 10/6/2016 VA 24-0296. The Veteran, in his brief to the Court, contended that the document supplied the dependency status requested by VA. See 3/22/2021 CAVC Decision, at page 15.

The Veteran submitted a completed VA 21-686c, Declaration of Status of Dependents, in March 2018. See 3/23/2018 VA 21-686c. Subsequently, in a June 2018 decision, the AOJ recognized the Veteran's spouse as his dependent and added her to his award of VA disability compensation, effective March 23, 2018.

After a careful review of the record, the Board finds that an earlier effective date of March 1, 2007, is warranted. The Veteran submitted a claim for compensation that included information identifying his spouse as his dependent for VA purposes on March 1, 2007. Unfortunately, this information was not recognized and adjudicated by VA prior to the June 2018 decision that granted the benefit sought.

While the Veteran's compensation claim with dependency information was submitted in March 2007, the Veteran did not meet the requirements for a claim for dependency benefits until the July 2016 rating decision granted service connection for bilateral hearing loss and tinnitus with an effective date of March 1, 2007, 

the initial award of a combined disability rating of at least 30 percent. The Board finds that the initial March 2007 claim had all the required information regarding both the Veteran and his spouse's marital history. 38 U.S.C. § 5107(b). Additionally, the Board finds that the Direct Deposit Enrollment filed in October 2016, effectively notified VA that the Veteran was still married to the same spouse. The Board further finds that the document was received within a year of the July 2016 notification letter, which informed the Veteran that he would need to submit VA Form 21-686c if he wanted to apply for dependents' benefits.  

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For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an effective date of March 1, 2007, is warranted for the addition of the Veteran's spouse as his dependent to his award of VA benefits. 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.F., 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.