Citation Nr: 21011257 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-41 398 DATE: March 1, 2021 ORDER Entitlement to an effective date earlier than April 1, 2011, for the award of additional compensation for the Veteran's spouse, J., is denied. Because the issue is moot, entitlement to additional compensation for the Veteran's son, J., for the period from January 1, 2009, to April 1, 2011, is denied. REFERRED The request for an audit of the additional dependency awards for the Veteran son J., and spouse J., was made in a July 2013 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran and his spouse J. were married on March [REDACTED], 2011. The effective date of the award of additional compensation for J. is March [REDACTED], 2011. The commencement of the payment period for this award is April 1, 2011. 2. The Veteran’s son J. was mistakenly removed from the Veteran’s compensation award as of April 1, 2011. In October 2012, the Veteran’s son was re-added to the award, effective April 1, 2011. There has been no period of lapse of benefits since the original establishment of dependency compensation for the Veteran’s son J. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than April 1, 2011, for the payment of additional compensation for the Veteran's spouse, J., have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.31, 3.401(b). 2. Because entitlement has already been established by VA, the criteria for entitlement to additional compensation for the Veteran's son, J., for the period from January 1, 2009, to April 1, 2011, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.31, 3.401(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to July 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an effective date earlier than April 1, 2011, for the award of additional compensation for the Veteran's spouse, J. The Veteran reports that he was married to his spouse J. on March [REDACTED], 2011, and that his additional payment for this dependent should be effective March [REDACTED], 2011. 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. 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). Once an effective date is established, the commencement of period of payment of an award may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. In this case, the award of additional compensation for the Veteran’s spouse is effective as of March [REDACTED], 2011, as determined by the June 2016 Statement of the Case (SOC). Thus, the first date that payment can begin is April 1, 2011. As this is the date that payment began for the Veteran’s additional compensation, 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). 2. Entitlement to additional compensation for the Veteran's son, J., for the period from January 1, 2009, to April 1, 2011. The Veteran asserts that there has been an interruption in the dependency compensation he has been paid for his son J. Specifically, in an August 2012 correspondence, the Veteran asserts that VA mistakenly removed J. from his award when it removed his ex-spouse A. from his award. He asserts that from January 2009, he was not paid the correct compensation amount and should have been paid for a veteran with a child without interruption. The June 2016 Statement of the Case (SOC) states that, while the Veteran’s son J. was mistakenly removed from the award effective April 1, 2011, VA re-established the Veteran’s son on the award and paid backpay through the time of removal. The question in the case is whether, factually, there is a period from January 2009 to April 1, 2011, during which the Veteran’s son was not added to the compensation award. This is not a question of law because entitlement has already been established. The Board finds no evidence that the Veteran’s son J. was erroneously removed from the award earlier than April 1, 2011. Despite the Veteran’s claim that VA mistakenly removed J. from his award when it removed his ex-spouse A. from his award, a February 2010 letter from VA indicates otherwise. That letter is the notice that VA removed the Veteran’s ex-spouse, A., from the award effective February 1, 2010. The letter further states that VA is paying him as a veteran with one dependent, which includes payment for his child. The letter shows that the child is his son J. Accordingly, the letter shows VA appropriately maintained J. on the compensation award as a dependent. A July 2012 letter from VA states that spouse J. was added to the Veteran’s award, and that VA was paying him as a veteran with one dependent. The effective date of adding spouse J, was April 1, 2011. The Veteran’s son J. was missing from this award. Thus, this is the point at which the error was made. In an October 2012 letter, VA notified the Veteran that it had made an error and that his son J. was added back to the award as of April 1, 2011, the date he was removed in error. Accordingly, there appears no point in time when the entitlement to compensation had lapsed and has not been re-established. Accordingly, the claim on appeal must be denied for lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.