Citation Nr: 21028491 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-08 802 DATE: May 11, 2021 ORDER Entitlement to an effective date prior to August 1, 2016, for the award of dependency benefits for the Veteran's spouse is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for left knee status post total knee replacement from April 1, 2012 to January 25, 2021 (excluding a period of temporary total convalescence rated at 100 percent from February 29, 2012 to March 31, 2012 under 38 C.F.R. § 4.30), is remanded. FINDING OF FACT The Veteran has been paid dependency benefits for his spouse from the earliest effective date possible under VA regulations. CONCLUSION OF LAW The criteria for an effective date prior to August 1, 2016, for the award of dependency benefits for the Veteran's spouse have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.31, 3.204, 3.401 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1971, with additional service in the Army Reserve and National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an August 2013 rating decision which continued a 20 percent evaluation for the Veteran's left knee disability. This matter also comes to the Board from a September 2016 decision which granted additional dependency benefits for the Veteran's spouse, effective July 4, 2016 and payable from August 1, 2016. In July 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. In October 2018 and November 2020, the Board remanded the matters for further development, to include obtaining VA examinations to assess the severity of the Veteran's left knee disability and to afford the Veteran a Decision Review Officer (DRO) hearing at the Regional Office (RO) on the issue of entitlement to an earlier effective date for dependency benefits. In a December 2020 letter, the RO informed the Veteran that a DRO hearing had been scheduled for January 12, 2021. The Veteran did not appear for the hearing, nor has he provided good cause for failing to attend the DRO hearing. Accordingly, the Board finds that the Veteran has withdrawn his request for a DRO hearing. In a February 2021 rating decision, the RO granted an increased 100 percent schedular evaluation for the Veteran's total left knee replacement, effective January 26, 2021. Effective March 1, 2022, the Veteran will be assigned a minimum 30 percent rating. The Board is unable to review the propriety of that future rating at this time. The Board notes that subsequent to the August 2020 supplemental statement of the case (SSOC), the Veteran submitted a valid VA Form 10182, Decision Review Request: Board Appeal, to opt his increased rating and earlier effective date claims into the Appeals Modernization Act (AMA). Due to administrative delay, the Veteran's VA Form 10182 was not processed prior to the Board's November 2020 legacy remand. The Veteran did not challenge the legacy remand and the RO undertook action on the remand resulting in a partial grant of the Veteran's increased rating claim. The Veteran has not submitted a new VA Form 10182 subsequent to the most recent February 2021 SSOC. Therefore, the Board has proceeded with the appeal under the legacy system. Entitlement to an effective date prior to July 4, 2016, for the award of dependency benefits for the Veteran's spouse. The Veteran contends that his spouse should have been added as a dependent prior to July 4, 2016. Specifically, the Veteran contends that he did not know he could add his spouse to his award but that he had been married since he separated from service and that he should receive dependency benefits from separation from service. In general, any veteran whose disability is rated not less than 30 percent shall be entitled to additional compensation for his or her eligible dependents. 38 U.S.C. § 1115. Furthermore, the award of additional disability compensation for a dependent is effective from the latest of the following dates: (1) Date of claim. This term 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 the VA request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating action. (4) Date of commencement of veteran's award. 38 U.S.C. § 5110; 38 C.F.R. § 3.401(b). The earliest date that an additional award of compensation for a dependent can occur is the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. 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. In addition, the Board notes that the Court has found that while acceptance of a claimant's written statement may be evidence of the existence of a dependent, it is only acceptable when it contains specific, required information. See McColley v. West, 13 Vet. App. 553, 557 (2000). By way of history, the Veteran filed a claim of service connection for his left knee in January 1971. With his claim, he also submitted a copy of his marriage certificate showing his marriage to P.W. in January 1969. In a February 1971 rating decision, VA granted the Veteran service connection for his left knee, evaluated at 10 percent. As the Veteran's evaluation was only 10 percent, he was not entitled to dependency benefits at that time. In December 2007, the Veteran filed an increased rating claim for his left knee, as well as claims of service connection for tinnitus and a bilateral foot disability. In a September 2008 rating decision, VA granted the Veteran a temporary total evaluation based on surgical or other treatment necessitating convalescence for his left knee effective October 6, 2003, followed by a 10 percent evaluation from December 1, 2003, and at 20 percent from December 13, 2007. VA denied service connection for tinnitus and a bilateral foot disability. In a September 2008 notification letter, VA informed the Veteran of his new compensation rating. The letter further informed the Veteran that information on his dependents was incomplete and requested that he complete and return VA Form 21-686c (Declaration of Status of Dependents). The Veteran did not respond to VA's request to provide additional information on his dependents; however, he did file a notice of disagreement with the denial of service connection for tinnitus and a bilateral foot disability. In an April 2010 rating decision, VA granted service connection for bilateral hearing loss, evaluated as noncompensable, and tinnitus, evaluated at 10 percent, effective December 13, 2007. In an April 2010 notification letter, VA informed the Veteran of his new compensation rating and that he was being paid as a single veteran with no dependents. The letter continued to explain that veterans who have service-related conditions with a combined evaluation of 30 percent or more may receive an additional allowance for their dependents, including a spouse. The letter informed the Veteran that if he wished to file a claim to add dependents, to complete and return the enclosed VA Form 21-686. The Veteran did not return a completed VA Form 21-686c or otherwise communicate to VA concerning the status of his dependents. In April 2012, the Veteran filed an increased rating claim for his left knee and in a May 2012 rating decision, VA granted a temporary total evaluation based on surgical or other treatment necessitating convalescence effective February 29, 2012 and continued a 20 percent evaluation from April 1, 2012. In a June 2012 notification letter, VA informed the Veteran of his new compensation rating and that he was being paid as a single veteran with no dependents. The letter continued to explain that the Veteran's combined evaluation was 30 percent or more and he was therefore eligible for additional benefits based on dependency. The letter informed the Veteran that if he wished to file a claim to add dependents, to complete and return the enclosed VA Form 21-686c. The Veteran did not return a completed VA Form 21-686c or otherwise communicate to VA concerning the status of his dependents. On July 4, 2016, VA received the Veteran's completed VA Form 21-686c (Declaration of Status of Dependents) listing his spouse, P.W. In a September 2016 decision, VA granted the Veteran dependency benefits for his spouse, effective July 4, 2016, the date VA received his claim, and payable from August 1, 2016. After reviewing the evidence of record, the Board finds that an effective date prior to July 4, 2016, for the award of dependency benefits for the Veteran's spouse is not warranted. While the Veteran asserts that he did not know he could add his spouse to his award, the RO informed the Veteran in September 2008 that information on his dependents was incomplete and invited him in September 2008, April 2010, and June 2012 letters to complete and return VA Form 21-686c to claim dependents. The Veteran does not allege that he did not receive these letters and the evidence of record does not show that these letters were returned as undeliverable. Furthermore, although the Veteran submitted a marriage certificate to VA in 1971 showing his marriage to P.W. in 1969, by the time the Veteran was eligible for dependency benefits as of the September 2008 rating decision, any information VA received nearly forty years earlier was outdated due to the passage of time. VA informed the Veteran that it needed additional information on the Veteran's dependents, and unfortunately, the Veteran did not respond. The effective date assigned for the addition of P.W. as the Veteran's spouse is July 4, 2016, which is when VA received notice of the information necessary to establish dependency. See 38 C.F.R. § 3.31. By regulation, this is the earliest effective date that can be assigned. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority even to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The United States Court of Appeals for Veterans Claims held that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). The Board is without the authority to disregard the applicable law, notwithstanding any extenuating circumstances that may have existed at the relevant time in question. Congress did not enact any exceptions to the above-discussed legal provisions that would permit a grant of the requested benefit. As the disposition of this claim is based on the law, and not on the facts of the case, the claim must therefore be denied based on a lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, entitlement to an effective date earlier than July 4, 2016 for the award of dependency benefits and August 1, 2016 for the payment of additional compensation benefits for the Veteran's spouse is denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for left knee status post total knee replacement from April 1, 2012 to January 25, 2021 (excluding a period of temporary total convalescence rated at 100 percent from February 29, 2012 to March 31, 2012 under 38 C.F.R. § 4.30), is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to an increased rating for the Veteran's left knee disability at this time as there appear to be outstanding VA treatment records. Subsequent to the Board's November 2020 remand, additional VA treatment records from April 2019 to present were added to the claims file. A review of these records shows the Veteran was prescribed physical therapy in 2019 and 2020 and his physical therapy treatment records were scanned into Vista Imaging. Records contained in Vista Imaging have not been associated with the record; therefore, the Board is unable to review them as part of the record on appeal. A remand is necessary to obtain outstanding records scanned into Vista Imaging and associate them with the record. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file all Vista Imaging documents relating to the Veteran's left knee, including, but not limited to, physical therapy records from 2019 to 2020. 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page) An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.