Citation Nr: 21075176 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-35 267 DATE: December 17, 2021 ORDER Entitlement to additional compensation benefits for spouse G for the period prior to April 23, 2012 is denied. Entitlement to additional compensation benefits for spouse G for the period from April 23, 2012 to December 20, 2013 is granted. FINDINGS OF FACT 1. The Veteran divorced prior dependent spouse L. on September 22, 2005. He married G. on May 4, 2009. He informed VA of the existence of G. on April 23, 2012. He divorced G. on December 20, 2013. 2. After receiving information of the existence of G. and change in marital status from L., a March 10, 2016 notification letter requested that the Veteran submit a VA 21-686(c), "Declaration of Status of Dependents" for spouse G. 3. On April 11, 2016, VA received a VA 21-686(c), "Declaration of Status of Dependents," providing the date and location of his divorce from L., the date and location of his marriage to G., and the date and location of his divorce from G. His April 23, 2012 form included the birth date and social security number for G. 4. An April 13, 2016 notification letter from VA indicated that the April 2016 VA 21-686(c) had not yet been received and requested it be submitted. A May 2016 letter noted that the Veteran failed to disclose information on his first wife; however, their divorce information was provided prior to his receipt of dependency benefits for his second wife, L. The May 2017 Statement of the Case (SOC) noted that the Veteran was not eligible to add G. as a dependent on his award because the "required evidence" was not provided to VA. The May 2017 SOC noted that the "required evidence" was the marital history for G. 5. The notification letters from VA did not include a request for the marital history of G. The Veteran has indicated they were married and provided a marriage certificate. There is nothing in the record to indicate she had prior marriages. CONCLUSIONS OF LAW 1. The criteria for the addition of G., to the Veteran's VA disability compensation, as his dependent spouse, prior to April 23, 2012, are not met. 38 U.S.C. §§ 101 (31), 1115, 5107, 5124; 38 C.F.R. §§ 3.1 (j), 3.4, 3.102, 3.204, 3.205, 3.216. 2. The criteria for the addition of G. to the Veteran's VA disability compensation, as his dependent spouse, from April 23, 2012 to December 20, 2013, are met. 38 U.S.C. §§ 101 (31), 1115, 5107, 5124; 38 C.F.R. §§ 3.1 (j), 3.4, 3.102, 3.204, 3.205, 3.216. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1979 to June 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied eligibility to add former spouse, G., as a dependent to his compensation award for the period they were married. The Veteran and his spouse appeared and testified at a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is contained in the record. During the Board hearing, the Veteran and his representative noted that his "main aim" for seeking dependency benefits for the period he was married to G. was to lower the amount of debt he accrued as a result of overpayment. The representative indicated that the Veteran was also seeking a waiver of overpayment. On his June 2017 substantive appeal, VA Form 9, the Veteran noted he was seeking a waiver of overpayment. In August 2017, the Veteran's request for a waiver was denied. It does not appear that he submitted a notice of disagreement with the denied waiver such that the waiver issue is before the Board. The Board notes that the Veteran's current spouse, M., was to be removed from his award for his failure to return a requested form to VA. However, a July 2021 notification letter informed the Veteran that M. was added back to his award, with no time lost. 1. Entitlement to additional compensation benefits for spouse G for the period prior to April 23, 2012 is denied. The Veteran is seeking to have a pervious spouse recognized as a dependent on his compensation award for the period they were married. His "main aim" in seeking eligibility to receive additional dependent benefits for G is to reduce the amount of debt he incurred as a result of overpayment for the period from October 1, 2005 to February 29, 2016. The overpayment occurred as a result of the Veteran failing to inform VA benefits offices about his change in dependency. The Veteran was married to G. from May 4, 2009 to December 20, 2013. In March 1996, the Veteran was informed that his wife L. was added to his award as his dependent spouse, effective August 1, 1995. The letter informing him of his receipt of benefits also informed him that he needed to let VA know "right away if there is any change in the status of [his] dependents." He received additional letters in August 1996, February 1998, and February 2000. These letters also noted that he was in receipt of dependency benefits for one dependent. A January 2004 letter informed him he was in receipt of additional compensation benefits for his spouse and children, and again informed him he must let VA know of any change in the status of his dependents. On April 23, 2012, the Veteran submitted a VA Form 21-0538 Status of Dependents Questionnaire, which listed his spouse as G., with a date of marriage of May 4, 2009. The form included G.'s social security number and date of birth. This is the first notice that VA received regarding the Veteran's divorce from L. and marriage to G. On March 9, 2016, VA sent the Veteran a letter noting that VA required a divorce date and place (city/state) in order to properly remove L. from his award. They letter also noted that VA required a VA Form 21-686c to add his new spouse, G., to his award. The letter proposed reducing his compensation payments from August 1995 if the Veteran did not respond within 60 days. A March 10, 2016 letter from VA noted that the Veteran would be paid as a single veteran with no dependents beginning March 1, 2016, with L. removed from his award. The letter noted that before he could be paid any additional benefits for G., VA needed to receive a VA Form 21-686c Declaration of Status of Dependents. He was notified that he had one year from the date of the letter to submit the necessary evidence to support his claim. On April 11, 2016, the Veteran submitted a VA Form 21-686c wherein he noted he was married to L. from May 1, 1982 until divorce on September 22, 2005, and he was married to G. from May 4, 2009 until divorce on January 7, 2013. He provided city and state information for both marriages and divorces. He was also noted to be currently married to M., with a marriage date of March 23, 2016. He provided the city and state for his current marriage, as well as the social security number for his current wife. Notably, the VA Form 21-686c comes with certain spaces in grey. The spaces in grey include the "how marriage was terminated" and "date and place terminated" for the first marriage listing, and spaces in grey for the social security number for the second two spaces. However, the form notes that applicants are required to provide the social security number of any dependents for whom benefits are claimed. Again, G.'s social security number was provided on the April 23, 2012 form. On April 14, 2016, VA sent the Veteran a letter noted that they had requested a VA Form 21-686c for his spouse G., and they had "not received the requested evidence" and his claim was denied. He was told to provide the "information we asked for" as soon as possible, and to call if he had any difficulties. The letter informed him that VA needed the required "evidence" by March 10, 2017 to continue processing his claim. Information received after March 10, 2017 would be considered a new claim, and he would not be able to receive any benefits prior to that date. Notably, the letter did not include what "evidence" was being sought by VA as the Veteran had submitted a VA Form 21-686c. On May 3, 2016, a VA representative contacted the Veteran to request that he provide the birth date for his spouse M., as it was left blank on the VA Form 21-686c he provided. On May 4, 2016, the Veteran submitted a notice of disagreement (NOD) wherein he noted that he was married to G. from April 4, 2009 to January 7, 2013. He also submitted a copy of his marriage certificate for his marriage to G (they were married May 4, 2009). On May 24, 2016, the Veteran submitted another VA Form 21-686c which only included information for his current spouse, M. On May 26, 2016, VA wrote to the Veteran that his VA Form 21-686c (presumably referencing his April 2016 form) indicated he had been married 4 times, but contained information only for three spouses. VA requested that he resubmit the form with information on all of his prior marriages. On June 21, 2016, the Veteran submitted a marriage license for his marriage to his current spouse, M. They were married on March 23, 2016. And another copy of his marriage certificate for his marriage to G. on May 4, 2009. On June 22, 2016, the Veteran submitted another VA Form 21-686c which included information on his marriage to current spouse M. (her date of birth, date and place of marriage, and her social security number), and for his prior spouse G. (the date and place of their marriage and the date and place their marriage was terminated through divorce). It did not include information on his other marriages. On July 7, 2016, the Veteran received a Debt Management Center letter noting that as a result of his change in compensation benefits, he had an overpayment of $19, 157.24, and that his VA benefits would be withheld from October 1, 2016 until his overpayment was recouped. He was informed of his right to request a waiver or dispute his debt. On November 18, 2016, the Veteran was informed that he was being paid as a Veteran with one dependent, effective April 1, 2016. This change in payment was a result of adding his current spouse, M., as a dependent. In May 2017, the RO issued a Statement of the Case which informed the Veteran that VA did not receive notification of his marriage to G. until April 23, 2012, and that the Veteran failed to provide a marital history for G. on his April 2016 and May 2016 VA Form 21-686c. "There is no marital history of record in [the Veteran's] claims file for [G]. The required evidence was not submitted in order to consider any eligibility for [G] as [the Veteran's] dependent." A veteran who is in receipt of disability compensation of 30 percent or more is entitled to an additional allowance for each dependent. 38 U.S.C. § 1115. In addition, 38 U.S.C. § 5110 (f) provides that "[a]n 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." For compensation benefits, it is the responsibility of the recipient of VA compensation benefits to notify VA of all circumstances which will affect entitlement to receive the rate of the benefit being paid. That is, the recipient of VA benefits must notify VA when he or she acquires knowledge that income, marital status, or dependency status will change or other circumstances which would affect his or her entitlement to receive, or the rate of, the benefit being paid. 38 C.F.R. § 3.660 (a)(1). It is pertinent to note that current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. See 38 U.S.C. § 5124; 38 C.F.R. § 3.204(a)(1). Such statements should, in pertinent part, include the following details: (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and (3) the social security number of any dependent for whom the claimant is seeking benefits. Here, there is no indication of a statement on its face that raises a question of its validity, nor is there a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationships in question. 38 U.S.C. § 5124 (c); 38 C.F.R. § 3.204 (a)(2). 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. As an initial matter, the Veteran met the threshold criteria of a minimum 30 disability rating for basic entitlement to additional payment for dependents from July 1, 1995. 38 U.S.C. § 1115. Therefore, the Veteran met the threshold criteria for additional payment for dependents during the length of his marriage to G. The Veteran and G were married on May 4, 2009 and divorced on December 20, 2013. See May 2009 Marriage License and December 2013 Divorce Decree. Therefore, from December 20, 2013, the Veteran is not entitled to an increased rate for compensation based on an additional dependency allowance for G. because they were not married. VA regulations describe the manner and methods in which a claim can be initiated a file. At a minimum, there must be a communication or action that indicates a desire to file for benefits under the laws administered by VA. 38 C.F.R. § 3.155 (a) (2015); see Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (stating that the requirements of an informal claim include the following: "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"). During the Veteran's Board hearing, he argued that VA had notice of the existence of G. as his spouse prior to his April 23, 2012 form because he had spoken to mental health care providers about both his divorce from prior spouse L. and marriage to spouse G. VA adjudicators are assumed to have constructive notice of VA records existing at the time of the decision. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). He also noted that he had informed DEERS (Defense Enrollment Eligibility Reporting System) of his divorce and re-marriage; however, VA does not have constructive notice of DEERS records. The Board has reviewed the Veteran's treatment records which include a March 29, 2006 mental health clinic initial assessment at the Biloxi VAMC, wherein he reported two prior marriages with his second marriage lasting from "1991-2005." The limited treatment records from 2009 and 2010 do not include information related to the Veteran's third marriage to G. An October 2009 VA mental health examination noted the Veteran had "two conflictual marriages over the next 25 years" and was victimized by his wives. He reported he was divorced from his second wife. There is a statement that "his wife sometimes hears him respond" to audio hallucinations, but it is not specific enough to understand whether the Veteran was describing his third wife (G.) or one of his prior wives. Especially with consideration of the additional social notation that the Veteran's "family relations have been chronically poor, and he currently lives alone." During the VA examination, the Veteran described his last mental health treatment as occurring from 2007 to "early 2009." The Board was unable to find VA treatment records that described the Veteran's third marriage/marriage to G. prior to April 23, 2012. Although the 2009 VA examination noted a "wife" the record was too vague for VA to have been on notice that he married for a third time. Dissolution of his second marriage was noted in treatment records. The Board was unable to find evidence that VA was informed of the existence of G. prior to April 23, 2012. As such, the Veteran is not entitled to additional dependency allowance for G. prior to April 23, 2012 as this was the latest of the dates of entitlement from the date his qualifying disability rating (July 1, 1995), date of his marriage to G. (May 4, 2009), and the date notice was received of the G.'s existence (April 23, 2012). 2. Entitlement to additional compensation benefits for spouse G for the period from April 23, 2012 to December 20, 2013 is granted. If a claimant submits an incomplete application for VA benefits, VA is required to notify the claimant of any evidence necessary to complete the application. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.158 (a). If VA requests evidence, including information with regard to dependency, but such evidence is not furnished within a year of the notification, the claim is deemed abandoned, and no benefits may be paid or furnished based upon the application. 38 U.S.C. § 5103 (a); 38 C.F.R. §§ 3.204, 3.158(a). After the expiration of the one-year period, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158 (a). If entitlement to the benefits sought is established after the expiration of the one-year period based on submission of the requested evidence, payment of the benefits may not commence earlier than the date of filing of the new claim. Id. Here, the RO failed to notify the claimant of the evidence they felt was necessary, but missing, to complete the dependency application. See 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.158 (a), 3.159(b). The Veteran submitted three copies of a VA Form 21-686c within a year of the March 2016 request for the form. Following submission of the April 2016 VA Form 21-686c, the RO responded that a form for spouse G. had not been submitted. The April 2016 form included information regarding his marriage to G., but also included information on his prior marriage to L. and current marriage to M. and was completed as described in the instructions for the form. Following submission of the May 2016 VA Form 21-686c, the RO responded that the form (seemingly referring to the April 2016 form) included information on only 3 of his 4 marriages. The Board notes that the missing 4th marriage was for the period prior to period on appeal, and prior to the Veteran meeting the statutory threshold 30 percent rating for additional dependent benefits. Oddly, in May 2016, the VA called the Veteran to request that he provide the birth date of his current spouse, but he was not asked to provide any other information missing from his dependency forms. There was no letter requesting any additional information following the Veteran's submission of the June 2016 form. Then, the May 2017 SOC denied his claim for failing to provide the marital history for G. Again, the Board notes that in the absence of conflicting information, proof of marriage that meets the requirements of 38 C.F.R. § 3.205 together with the claimant's certified statement concerning the date, place, and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205 (b). However, when the claimant's statement concerning marriage conflicts with other evidence of record, additional evidence is required to accept a marriage as valid or as dissolved. 38 C.F.R. § 3.204 (a)(2). It is pertinent to note that current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent. See 38 U.S.C. § 5124; 38 C.F.R. § 3.204 (a)(1). Such statements should, in pertinent part, include the following details: (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and (3) the social security number of any dependent for whom the claimant is seeking benefits. Here, there is no indication of a statement on its face that raises a question of the validity of the Veteran's marriage to G., nor is there a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationships in question. 38 U.S.C. § 5124 (c); 38 C.F.R. § 3.204 (a)(2). The Veteran has indicated that he was legally married to G. from May 4, 2009 to December 20. 2013. He has provided a certificate of marriage and a divorce decree. There is no indication in statements or other evidence of record that G. was previously married, such that information regarding her marital history would be necessary and a bar to providing the Veteran additional dependency benefits. Notably, the RO failed to inform the Veteran of the information he was missing on his VA Forms 21-686c, instead requesting that he resubmit the forms, that the required "evidence" be provided in the forms (without explaining the missing evidence), and on one occasion requesting information on his marriage and divorce from his first wife. However, VA had previously paid dependency benefits for his second wife, and the record contained a divorce decree for his divorce of his first wife, T., received in 1995. During the Veteran's August 2021 Board hearing, the Veteran noted that he had suffered two strokes, the first in 2008, and that he was in receipt of a combined 100 percent disability rating from 2009, with a 50 percent mental health rating from 1998. He noted that part of his mental health rating included consideration of memory impairment. He argued that as soon as he received notice from VA regarding the error in reporting his dependents that he submitted the forms that were requested. The Board notes that prior to the 2017 SOC, which was issued more than a year after the March 2016 notification letter requestion complete application for dependency benefits, the RO failed to state what information or evidence was missing from the Veteran's application. The Board finds that the combination of evidence in the record prior to March 2017 was sufficient. The Veteran provided the name, birth date, marriage date, and social security number for G. on his April 23, 2012 form. He completed a VA Form 21-686c in April 2016 which included his marriage date and location, as well as his divorce date and location for G. He submitted a marriage certificate in May 2016. Although he did not submit his divorce decree until July 2017, more than a year after the date of notification requesting completion of a VA Form 21-686c, VA will, with certain exceptions, accept the statement of a claimant as proof of dissolution of a marriage, where the statement contains the date, location, name, relationship (spouse) and social security number of the dependent. See generally 38 U.S.C. § 5124; 38 C.F.R. § 3.204 (a)(1). The Veteran provided this information, and there was no conflicting evidence of record, or evidence that was incorrect on its face, such that his report of divorce from G. was insufficient. As such, the Board finds that the Veteran met his obligation to provide the information required to claim G. as a dependent from the date that VA was first informed of her existence (April 23, 2013) until their divorce (December 20, 2013). The Board is sympathetic to the Veteran's request for dependency benefits for G. for the entirety of their marriage, but is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104 (c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2018). Those laws and regulations prohibit an effective date prior to April 23, 2012 based on the facts of this case. The benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. Stubbs, 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.