Citation Nr: 21022263 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-00 090A DATE: April 15, 2021 ORDER Entitlement to an effective date of November 18, 2009, but no earlier, for dependency benefits for the Veteran’s former spouse, L.K., is granted. FINDING OF FACT 1. A claim for CHAMPVA (Civilian Health and Medical Program of the Department of Veterans Affairs) benefits is a separate claim filed by the spouse and does not constitute an informal claim by the Veteran for additional compensation based on a dependent spouse. 2. On November 18, 2009, the Veteran first submitted an informal claim for additional disability compensation benefits based on his marriage to L.K. 3. The Department of Veterans Affairs (VA) did not request the missing SSN upon receipt of the November 2009 informal claim as required under 38 U.S.C. § 5102. CONCLUSION OF LAW The criteria for an effective date of November 18, 2009, but no earlier, for dependency benefits for the Veteran’s former spouse, L.K., are met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.31, 3.401 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1970 to April 1972. In February 2019, the Veteran informed VA that he divorced L.K. in January 2019. In November 2020, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. 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. However, prior to March 2015, 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a). 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. 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. Under 38 C.F.R. § 3.216 Mandatory disclosure of social security numbers, beneficiaries and claimants are required to disclose to VA their Social Security number (SSN) and the SSNs of their dependents as a condition of receiving or continuing to receive compensation or pension. It further provides “[b]enefits will be terminated if a beneficiary fails to furnish the [VA] with his or her social security number or the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received, within 60 days from the date the beneficiary is requested to furnish the social security number.” The Veteran was rated at least 30 percent disabling for his service-connected posttraumatic stress disorder since July 16, 1981, thus he is rated appropriately to receive additional compensation for a spouse since that date. The Veteran contends that he is entitled to an effective date in June 2007, the date of his marriage to L.K. He contends that shortly after their marriage, his wife applied for CHAMPVA health benefits program and thus the VA was informed of his marriage to L.K. at that time. In October 2020, the Veteran submitted a copy of L.K.’s CHAMPVA Identification Card with an effective date in June 2007. Here, in August 2009 and October 2009 notification letters, the RO requested that the Veteran provide an update on the status of his dependents. In response, in a November 18, 2009, Report of General Information, the Veteran reported that he divorced his former spouse and married L.K. in June 2007. He reported that he would submit her social security number and VA-Form 21-686c. He indicated that he was homeless at the time and believed the information was sent to the RO. On February 25, 2011, the Veteran provided L.K.’s social security number. The facts in this appeal as it relates to the Veteran’s spouse, L.K., are not in dispute. In the November 2009 Report of General Information (phone call), the Veteran provided his spouse’s name and date of marriage to his spouse, which is more than one year after the marriage took place in June 2007. The Board finds this contact constituted an informal claim for dependency benefits for his spouse, L.K. As noted above, 38 C.F.R. § 3.216 requires beneficiaries and claimants to disclose to VA their SSN and the SSNs of their dependents as a condition of receiving or continuing to receive compensation or pension. However, under 38 U.S.C. § 5102, “[u]pon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.” In addition, regarding incomplete applications, the VA is required to notify the claimant and the claimant’s representative, if any, of the information is necessary to complete the application. Here, after contact with the Veteran in November 2009, the RO did not send the Veteran all instructions and forms necessary to apply for dependency benefits for his spouse or request his spouse’s SSN, as required. Although the Veteran did not initially include all of the necessary information in the November 2009 Report of General Information, the Veteran provided sufficient information regarding his marriage to L.K. and the VA failed to request additional information, to include L.K.’s SSN, as required under 38 U.S.C. § 5102. Nonetheless, had the RO appropriately documented the Veteran’s file as married to L.K. in November 2009, the RO could have requested L.K.’s SSN and awarded additional dependency benefits for his spouse at that time. Therefore, given that the Veteran was in receipt of the minimum 30 percent disability rating since 1981, and has been married to L.K. since 2007, and the RO failed to properly document his reported marriage in November 2009 or follow-up with the Veteran to obtain the requisite information, to include L.K.’s SSN, as required, the Board finds that an effective date of November 18, 2009, the date notice was received of the dependent spouse’s existence, is warranted. Although the Veteran contends he is entitled to additional VA compensation for his spouse since his marriage in 2007 based on his application for his spouse’s CHAMPVA healthcare benefits, the Veteran’s application for CHAMPVA benefits does not constitute an informal application to apply for additional VA compensation based on the Veteran’s receipt of disability benefits for his service-connected disabilities, as these are two separate benefits administered by separate VA entities. CHAMPVA is a comprehensive health care program in which VA shares the cost of covered health care services and supplies with eligible beneficiaries, including the spouse or child of a Veteran who has been rated permanently and totally disabled for a service-connected disability by a VA regional office. CHAMPVA is a separate program from those administered by the Veteran’s Benefit Administration (VBA) of the VA (it is administered by the Veteran’s Health Administration (VHA) Office of Community Care), and all literature associated with the CHAMPVA program makes it clear that the recipient of CHAMPVA benefits is the eligible party and not the Veteran sponsor. In this case, the Veteran’s spouse was the applicant for, as well as the subsequent recipient, of CHAMPVA benefits. That application was made to the VHA and not the VBA, by the Veteran’s spouse and not the Veteran. The Veteran has submitted correspondence from VHA indicating that L.K. is eligible for CHAMPVA benefits from June 2007 to June 2067. This correspondence was clearly sent to the Veteran’s spouse and not the Veteran (indicating that she was the applicant). Any correspondence associated with the benefit would be associated with the spouse’s file, and not the Veteran’s claim file. In addition, the application for CHAMPVA benefits (VA Form 10-10d), which defines the applicant as the dependent and the Veteran as the sponsor, does not include any indication that a claim for CHAMPVA infers a claim for dependency on behalf of the sponsor. Essentially, claims for CHAMPVA benefits and claims for dependency benefits are two separate claims made by two separate claimants. The VA cannot infer a claim based on the Veteran’s spouse’s CHAMPVA award. The claim for additional compensation for a dependent spouse is a specific benefit which must be intentionally claimed by a veteran and not the dependent spouse. Here, the record reflects that the November 2009 phone call, as noted on the Report of General Information, was the earliest intentional claim by the Veteran for additional disability compensation for L.K. as his dependent spouse. Consequently, there is no legal basis upon which to grant an effective date prior to November 18, 2009, for the addition of L.K. as the Veteran’s dependent to his award of VA disability compensation. The Board sympathizes with the Veteran regarding the inequities he believes result from not being entitled to the dependent benefits at an earlier time. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); Burris v. Wilkie, 888 F.3d 1352, 1358 (Fed. Cir. 2018) (holding that “§ 503 provides the Secretary with the authority to grant the precise relief that Appellants request here [payment of moneys], and the Secretary has not delegated that authority”). The Board further observes that “no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress.” See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). (Continued no next page)   In sum, for the reasons noted above, the Board finds that an effective date of November 18, 2009, but no earlier, is warranted for dependency benefits for the Veteran’s former spouse, L.K., are met, and to that extent the appeal is granted. E. I. VELEZ 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.