Citation Nr: 21068223 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-36 875 DATE: November 9, 2021 ORDER Increased compensation for the period when N.R. was a dependent spouse is denied. FINDING OF FACT A complete initial formal application to add N.R. to the Veteran's compensation award as his dependent spouse was filed after he and N.R. were divorced, and after the one-year period for filing that claim had expired. CONCLUSION OF LAW The criteria for an award of increased compensation based on the status of N.R. as a dependent spouse have not been met. 38 U.S.C. §§ 1115, 1135, 5101, 5102, 5107, 5110; 38 C.F.R. §§ 3.1, 3.4, 3.110, 3.151, 3.155, 3.400, 3.401 (2012, 2014). (Continued on following page) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 1992 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. Dependency Compensation This appeal concerns whether additional compensation based on dependency of the Veteran's former spouse, N.R., may be awarded for the period they were married. As explained below, because a complete initial application for additional compensation based on N.R.'s status as the Veteran's spouse was not filed until after their divorce, or within one year of notice of the incomplete claim for increased compensation, the criteria for adding N.R. to the Veteran's award are not met, as she was not his spouse during the pendency of the claim. Preliminarily, the initials N.R. are based on the former spouse's first and last name as set forth in the March 2012 marriage certificate and the October 2013 divorce decree. An additional amount of compensation may be payable for a spouse, child, or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 percent or more disabling. 38 U.S.C. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2). An application form (VA Form 21-686c) to add N.R. to the Veteran's compensation award as his dependent spouse was filed in April 2012, together with a marriage license and certificate as proof of their marriage, and divorce decrees as proof that they were no longer married to their former spouses. There is no issue in this case as to whether sufficient proof of their marriage was provided, or whether the basic eligibility criteria for adding N.R. to the Veteran's award were met at the time that form was filed. However, the April 2012 VA Form 21-686c was incomplete. Specifically, it was not signed by the Veteran, but rather by N.R. The form instructs that unless the claimant is the Veteran' surviving spouse, the veteran must sign the form in item 18 (the section asking for the claimant's signature). The Board notes that there is no indication in the record that she was legally authorized to sign on his behalf. VA sent a letter to the Veteran in May 2013 informing him that the April 2012 VA Form 21-686c lacked his signature. The letter states that the VA Form 21-686c was being resent to him, and he was instructed to complete and sign the form for processing. The letter also notified him that the questions numbered 6 and 8 in the form needed to be answered. In that regard, the form submitted in April 2012 left question number 8 blank. In December 2013, the Veteran submitted a copy of the same April 2012 VA Form 21-686c. The only changes made to the form concerned the fact that he and N.R. had divorced in October 2013. He thus filled out the sections regarding prior marriages to reflect that they were now former spouses. The form otherwise remained unchanged. It still had N.R.'s signature rather than his own in the section requesting the signature of the claimant. In May 2014, VA received a VA Form 21-686c with the Veteran's signature. In the "Remarks" section of the form, it states that the Veteran was no longer married to N.R., and that the form was intended to correct the prior form submitted while they were still married. The Board notes that VA sent the Veteran a letter in June 2014 stating that VA had still not received a VA Form 21-686c with his signature and an answer to question number 8 on the form. The letter informed him that if the form was submitted by May 3, 2014, VA could continue processing the claim; otherwise, it would be considered a new claim. As shown above, the Veteran had in fact submitted the VA Form 21-686c in May 2014. However, it was received by VA on May 12, 2014. The Board finds that the June 2014 VA letter has no bearing on the issue of whether the complete VA Form 21-686c was timely submitted, since he had already submitted the complete form when the letter was sent to him. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for the payment of additional compensation for dependents will be 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 1 year of notification of such rating action; or (4) date of commencement of Veteran's award. 38 C.F.R. § 3.401(b). The term "date of claim" means the following, listed in their order of applicability: (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. Id. The Board notes that amendments were made to the VA regulations concerning the filing of claims effective March 24, 2015. 79 Fed. Reg. 57660 (Sept. 25, 2014) (final rule). Because the VA Form 21-686c regarding N.R. was submitted prior to March 24, 2015, the regulations in effect prior to the amendments apply. VA law in effect prior to March 24, 2015, as now, provides that "[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." 38 U.S.C. §§ 5101; 38 C.F.R. § 3.151 (2012, 2014, 2021). Prior to March 2015, VA regulation defined a "claim" or "application" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement[] to a benefit." 38 C.F.R. § 3.1(p) (2014); see Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (setting forth the essential requirements of a claim as (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing). An original claim for pension, compensation, or dependency and indemnity compensation was defined as an initial formal application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). Regarding informal claims, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2012, 2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. Id. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Prior to March 24, 2015, as now, the statute provided that "[i]f 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 . . . [is] notified under [§ 5102(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). Prior to March 2015, as now, the statute also provided that "a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary." 38 U.S.C. § 5107. Here, a formal application was required to add N.R. to the Veteran's award because an initial formal application for that benefit had not previously been filed. See 38 C.F.R. § 3.160(b); see also 38 C.F.R. § 3.155(a). The April 2012 VA Form 21-686c did not satisfy the requirements of a formal claim "in the form prescribed by the Secretary" because it lacked the Veteran's signature. As it otherwise satisfied the requirements for a claim, it served as an informal claim or incomplete formal claim. See 38 C.F.R. §§ 3.1(p), 3.155(a); Brokowski, 23 Vet. App. at 84. Pursuant to 38 U.S.C. § 5102(b) and 38 C.F.R. § 3.155(a), on May 2, 2013, VA notified the Veteran by letter that the April 2012 form lacked his signature, and that question number 8 in the form had not been answered. Enclosed with that letter was a VA Form 21-686c, which he was instructed to complete and sign for processing. He thus had one year from the date of the May 2013 letter to submit a formal claim with the missing information. See 38 U.S.C. § 5102(c); 38 C.F.R. § 3.155(a). In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. 38 C.F.R. § 3.110(a) (2012, 2014). This rule is applicable in cases in which the time limit expires on a workday. Id. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. Id. The "first day of the specified period" shall be the date of mailing of notification to the claimant or beneficiary of the action required and the time limit therefor. § 3.110(b). The date of the letter of notification shall be considered the date of mailing for purposes of computing time limits. Id. Here, the VA Form 21-686c, and the letter notifying the Veteran that his signature on that form was required and was lacking in the previously submitted form, was sent on May 2, 2013. Accordingly, that date is the "first day of the specified period," and is excluded in computing the time limit for submitting the corrected form. See 38 C.F.R. § 3.110. Thus, the one-year time period was from May 3, 2013 to May 3, 2014. Because the time limit expired on a Saturday that year, the Veteran had until May 5, 2014 to submit the form. VA received the completed VA Form 21-686c on May 12, 2014, a week after May 5, 2014. Therefore, it was submitted after the one-year time limit for filing the formal claim. Accordingly, because the completed VA Form 21-686c was submitted more than a year after notice to the Veteran of the information that was missing, and more than one year after VA's provision of that form to him, additional compensation benefits based on N.R.'s dependency may not be paid "by reason of" the April 2012 application. See 38 U.S.C. § 5102(c). As the May 2014 VA Form 21-686c was submitted after the expiration of the one-year time limit for submitting that form, as explained above, and more than one year after the Veteran's marriage to N.R., it constituted a new claim, and had no retroactive effect. See 38 C.F.R. §§ 3.155, 3.401. The effective date for the payment of additional compensation for dependents cannot be earlier than the date of claim. 38 C.F.R. § 3.401(b). The Veteran and N.R. divorced in October 2013, as shown in the divorce decree. Thus, when he submitted the May 2014 VA Form 21-686c, the criteria for adding N.R. to the award were not met, as she was not his spouse during the pendency of the claim. See 38 U.S.C. §§ 1115, 1135; 38 C.F.R. § 3.4(b)(2). As additional dependency compensation for the period that N.R. was the Veteran's spouse must be denied based on the date of filing of the claim, and thus based on the application of law to facts without it being necessary to weigh the evidence on that issue, the benefit-of-the-doubt rule does not apply. See Sabonis v. West, 6 Vet. App. 426, 430 (1994); cf. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.