Citation Nr: A21019885 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 190729-35231 DATE: December 14, 2021 ORDER 1. Entitlement to an effective date of July 2014, the date of divorce, for removal of the Veteran's previous spouse J.H. for additional dependency benefits is granted. 2. Entitlement to an effective date earlier than March 9, 2018, for the addition of the Veteran's child C.H. for additional dependency benefits is denied. FINDINGS OF FACT 1. In October 2018, the Veteran reported he was married to L.M. and in March 2019, he reported he was no longer married to J.H.; a divorce decree was received in August 2021, which reflects the divorce was finalized in December 2014 and the divorce was retroactively granted from July 2014. 2. On March 9, 2018, the Veteran first informed the Department of Veterans Affairs (VA) of his son, C.H.'s, April 2016 birth. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 2014, for the removal of the Veteran's previous spouse, J.H., as his dependent spouse for additional dependency benefits have been met. 38 U.S.C. §§ 101(31), 1115, 5107, 5124; 38 C.F.R. §§ 3.1(j), 3.4, 3.204, 3.205, 3.216. 2. The criteria for an effective date earlier than March 9, 2018, for the addition of the Veteran's child, C.H. for additional dependency benefits have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to June 2009. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2019 decision by the VA Regional Office (RO). In the June 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his/her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2021, the Veteran testified during a Board virtual hearing. A transcript of that hearing is of record. Following the hearing, the Veteran submitted additional evidence on August 18 and August 19, 2021. In an accompanying statement, the Veteran's representative wrote that he was unable to log into Citrix on August 17, 2021, to upload the Veteran's evidence. Given this reasoning and the evidence was submitted just a couple days after the expiration of the 90-day period, and the Board is granting the claim for an effective date of July 2014 for the removal of J.H. as a dependent spouse and denying the claim for an earlier effective date for the addition of dependent child C.H. as a matter of law, the Board will consider this evidence and proceed with the appeal. In January 2019, the RO issued a letter proposing to remove J.H. as a dependent spouse from May 2009, the last date VA knew he was married to J.H. In March 2019, the Veteran filed an unsigned and undated legacy notice of disagreement (NOD). The Board finds that the March 2019 legacy NOD is invalid because the January 2019 notification letter was a proposal, and the removal of J.H. from June 2009 was not effectuated until the March 2019 decision. Further, the NOD was not signed or dated, and, in a November 2021 letter, the RO explained to the Veteran that the legacy NOD was incomplete. Therefore, the March 2019 legacy NOD is invalid. Analysis 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 these issues and the period of time in question, rated appropriately to receive additional compensation for a spouse and child dependents. 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). 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 veteran'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 VA's request. 38 U.S.C. § 5110; 38 C.F.R. § 3.401. The "date of claim" for additional compensation for a dependent child is the date of the child's birth, 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. For purposes of determining entitlement to VA benefits, VA will accept 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. Regardless of the regulation governing effective dates of awards, payment of monetary benefits based on compensation begins the first day of the month following the effective date. 38 C.F.R. § 3.31. Where necessary to a determination because of conflicting information or protest by a party having an interest therein, proof of termination of a prior marriage will be shown by proof of death, or a certified copy or a certified abstract of final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.206(b). 1. Entitlement to an effective date of July 2014 for removal of the Veteran's previous spouse J.H. for additional dependency benefits. The Veteran contends that the effective date for the removal of his previous dependent spouse J.H. should be the date of their divorce. It appears the Veteran mistakenly reported he divorced J.H. in July 2015, however, the divorce decree submitted in August 2021 reflects the divorce was finalized in December 2014 and granted retroactively to July 2014. August 2010 to October 2015 notification letters informed the Veteran that he was in receipt of additional dependency benefits for his spouse, J.H. and two children. Notably, the August 2011, October 2012, October 2014, and October 2015 were issued before and shortly after the divorce proceedings began in July 2014 and finalized in December 2014. The Veteran was also advised to inform VA of any changes in the status of his dependents, and the August 2011 and October 2012 letters also specifically informed the Veteran that failure to report changes in his dependency status may result in an overpayment in VA benefit. Although in July 2014 and November 2015, VA received a child support garnishment requests from J.H., the requests do not indicate that the Veteran was divorced from J.H. In August 2017, the Veteran submitted a statement regarding a VA examination appointment that he missed. He reported that his wife, L.M., contacted VA to reschedule it. In a March 2018 Application for Compensation and/or Pension and VA 21-686c Application Request to Add And/Or Remove Dependents, the Veteran informed VA that he was married to J.H. In an August 2018 letter, VA informed the Veteran that a completed VA Form 21-0538 Mandatory Status of Dependents was required to verify continued entitlement to additional benefits for dependents. In the October 2018 VA Form 21-0538, the Veteran reported he was married to L.M. In November 2018, given the conflicting information regarding his spouse, VA informed the Veteran his marriage dependency compensation would be discontinued effective from the date he was last paid on November 1, 2018, and, in order to add his dependents, a marriage certificate for his marriage to L.M. and J.H.'s birth certificate were required. In a subsequent November 2018 letter, VA removed J.H. as a dependent spouse effective from December 1, 2018. As April 21, 2009 was the last date VA knew of his marriage to J.H., VA proposed removal of J.H. as a spouse from May 1, 2009. In January 2019, VA informed the Veteran that documentation regarding termination of his marriage to J.H. and marriage to L.M. was necessary. In March 2019 VA Form 21-0958 invalid legacy NOD and statement, the Veteran reported he was married to J.H. until July 2015. In a March 2019 VA Form 21-686c Application for Compensation and/or Pension and VA 21-686c Application Request to Add And/Or Remove Dependents, the Veteran informed VA that he divorced J.H. in July 2015 in Gardnerville, Nevada, and married L.M. in August 2016. In a March 2019 notification letter, VA removed J.H. from the Veteran's award effective July 1, 2009, because documentation showing when and where his marriage to J.H. terminated was not provided. In a statement submitted with his June 2019 Board appeal, the Veteran reported that he divorced J.H. in July 2015, and not June 2009, and then remarried. Therefore, he reported that he should only owe a maximum of $1,000.00 dollars. During the Board hearing, the Veteran reported that in adding C.H. to his award in 2018, he listed C.H.'s mother J.H. in VA Form 21-686c as his new spouse. He reported that he divorced J.H. in July 2015 and married his new spouse in August 2016. A divorce decree received in August 2021 shows the Veteran's divorce to J.H. was granted in December 2014 and the date of divorce was granted retroactively to July 2014. Accordingly, entitlement to an effective date of July 2014, the date of divorce, for removal of the Veteran's previous spouse J.H. for additional dependency benefits is granted. Although the Veteran has reported that he divorced J.H. in July 2015, the divorce decree shows the correct date of divorce is in July 2014. As the Veteran has specifically asked for J.H. to be removed from the date of his divorce, the Board finds that the benefit sought on appeal has been granted in full. As the Board's decision affects the amount of overpayment for the period that the Veteran received dependency benefits for a spouse while he was unmarried, the RO should recalculate the overpayment amount and undertake any additional action as necessary. Notably, the Veteran has acknowledged that he owes the overpayment amount for the period that he was unmarried. 2. Entitlement to an effective date earlier than March 9, 2018, for the addition of the Veteran's child C.H. for additional dependency benefits. The Veteran first reported his biological son, C.H., to VA in the March 2018 VA Form 21 686c. The Veteran reported C.H. was born in April 2016 in Carson City, Nevada. As the Veteran did not provide this information until March 2018, almost two years after C.H.'s birth, the RO assigned an effective date of March 9, 2018, the date of the claim, for the addition of C.H. as the Veteran's dependent child to his award of VA disability compensation. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than March 9, 2018 for the addition of C.H. as the Veteran's dependent child to his award of VA disability compensation. The Veteran did not report C.H.'s birth prior to that date, and the Veteran had not previously submitted a claim for recognition of C.H. as his dependent child. As such, the RO has already assigned the earliest possible effective date for the addition of C.H. as the Veteran's dependent child to his award of VA disability compensation. See 38 C.F.R. § 3.401(b). Notices sent to the Veteran in August 2010 and thereafter, clearly notified him of his responsibility to immediately report any changes in the status of his dependents. For these reasons, there is no legal basis upon which to grant an earlier effective date. The Board understands the Veteran's allegation regarding the inequities he believes result from not being entitled to those dependents benefits at an earlier time. However, the Board is bound by the law. See 38 U.S.C. §§ 503, 7104. For these reasons, the Board concludes that an effective date earlier than March 9, 2018, for the addition of C.H. as the Veteran's dependent child to his award of VA disability compensation, is not warranted. Therefore, the appeal as to this issue is denied. 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.