Citation Nr: 21032846 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 20-14 782 DATE: May 28, 2021 ORDER An effective date prior to May 3, 2018, for the addition of the Veteran's spouse, C.L.H., to his award of Department of Veterans Affairs (VA) disability compensation is denied. FINDING OF FACT 1. The Veteran and C.L.H. were married in July 2015. 2. The Veteran did not submit a claim for additional VA disability compensation benefits based on his marriage to C.L.H. prior to May 3, 2018. CONCLUSION OF LAW The criteria for an effective date prior to May 3, 2018, for the addition of the Veteran's spouse, C.L.H., to his award of VA disability compensation have not been met. 38 U.S.C. §§ 1115, 5110 (2012); 38 C.F.R. §§ 3.4, 3.204, 3.401 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from March 1986 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 decision of a VA Regional Office (RO). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to an effective date prior to May 3, 2018, for the addition of the Veteran's spouse, C.L.H., to his award of VA disability compensation. Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents. 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2). 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). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). 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. 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. Here, the Veteran seeks an earlier effective date of July 2015, the date of his marriage to C.L.H., for the addition of C.L.H. as his dependent spouse 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 May 3, 2018, for the addition of the Veteran's spouse, C.L.H., as his dependent to his award of VA disability compensation. There is nothing in the record prior to that date that can be construed as a claim, pursuant to 38 C.F.R. § 3.1(p), or an intent to file a claim, pursuant to 38 C.F.R. § 3.155(b), for additional dependency benefits based on the Veteran's marriage to C.L.H. As such, the RO has already assigned the earliest possible effective date for the addition of C.L.H. as the Veteran's dependent to his award of VA disability compensation. The Board acknowledges the Veteran's argument that VA had constructive knowledge of his marriage to C., as the May 2017 VA PTSD contract examination report indicated that the Veteran had been married to his second wife for two years, and such examination report was relied upon in the May 2017 rating decision. However, the Board finds that the Veteran's statement during a VA examination, conducted in relation to a disability rating claim, that he had been married to his second wife for two years does not impart to the adjudicators of the Veterans Benefits Administration (VBA) his intent to seek additional compensation benefits based on the existence of C.L.H. Thus, while acknowledging that the Veteran stated during a VA examination that he had been married to his second wife for two years, a claim seeking additional compensation benefits for his dependent spouse was not received by VA until May 3, 2018. See 38 C.F.R. § 3.155(a). The Board further acknowledges the Veteran's representative's argument that VA failed to follow its own procedures, as outlined in the VA Adjudication Manual (M21-1) when it did not notify the Veteran in the May 2017 decision notification letter that he was potentially entitled to additional benefits based on his dependents. The representative contends that but for such failure by VA to notify the Veteran, the Veteran would have been put on notice that he was potentially entitled to such benefits and would have submitted a timely application for such benefits, resulting in an earlier effective date for the addition of the Veteran's spouse, C.L.H., as his dependent to his award of VA disability compensation. See November 2020 letter from the Veteran's representative. While the Board is not bound by the M21-1, the Board must discuss any relevant provisions contained therein before deciding the claim. See Overton v. Wilkie, 38 Vet. App. 257, 263 (2018); see also Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affs., 981 F.3d 1360, 1365 (Fed. Cir. 2020) (en banc) (holding that M21 provisions may, under certain circumstances, be reviewable under the Administrative Procedures Act, while acknowledging that M-21-1 provisions are not binding on the Board). As stated by the Veteran's representative, the M21-1, in Part II, Subpart v, Chapter 2, Section B.1.k., states that when preparing a decision notice, the Veterans Benefits Administration (VBA) adjudicator will notify the claimant of any additional benefits to which potential entitlement exists, including additional benefits for a spouse/child, and, if applicable, the form or website available for applying for benefits. In this case, the Board recognizes that the May 2017 decision letter did not include any notice to the Veteran that he was potentially entitled to additional benefits for a spouse. However, such failure to notify the Veteran of his potential entitlement to additional benefits for a spouse cannot form the basis of an award of an earlier effective date in this case. As explained above, 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 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Here, the Veteran did not file such specific claim for benefits until November 2018, within one year of the May 3, 2018 notification of the Veteran's intent to file a claim. Thus, the RO properly assigned an effective date of May 3, 2018 for the addition of the Veteran's spouse, C.L.H., as his dependent to his award of VA disability compensation. There is nothing in the relevant laws and regulations that would support the award of an effective date prior to the date of claim based on VA's failure to notify a veteran of potential entitlement to additional benefits for a spouse. Furthermore, the Board notes that, even if the Veteran had been properly notified in the May 2017 decision letter that he was potentially entitled to additional benefits for a spouse, the representative's contention that the Veteran would have promptly submitted a claim upon receiving such notice is pure speculation. Speculation as to how a claimant might have responded but for some event cannot, and does not, ever form the basis for an award of VA benefits. Finally, the Board notes that the Veteran had previously applied for, and received, additional VA disability benefits for his child. See March 2010 VA Form 21-686c, Declaration of Status of Dependents; January 2015 VA decision notification letter. The Veteran's prior application for, and receipt of, additional compensation for a dependent clearly indicates that the Veteran knew of his potential entitlement to additional benefits for a dependent and how to submit a claim for such benefits. Thus, the Board finds that the Veteran had actual knowledge that he was potentially entitled to additional benefits for dependents, including a spouse, and that any failure by VA to include notice of his potential entitlement to such additional benefits in the May 2017 decision letter was harmless. Consequently, there is no legal basis upon which to grant an effective date prior to May 3, 2018, for the addition of the Veteran's spouse, C.L.H., as his dependent to his award of VA disability compensation. The Board sympathizes with the Veteran regarding the inequities he believes result in not being entitled to those 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; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 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). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.