Citation Nr: A24035546 Decision Date: 07/02/24 Archive Date: 07/02/24 DOCKET NO. 210317-144823 DATE: July 2, 2024 ORDER Entitlement to an earlier effective date than February 4, 2021, for an award of additional dependency benefits for A. N. H., the Veteran's spouse, is denied. FINDINGS OF FACT 1. The record evidence shows that, in a rating decision dated on August 11, 2018, and issued to the Veteran and his service representative on August 16, 2018, the Agency of Original Jurisdiction (AOJ) granted service connection for obstructive sleep apnea, assigning a 50 percent rating effective February 23, 2018, and for posttraumatic stress disorder (PTSD), assigning a 50 percent rating effective February 23, 2018; this resulted in an overall disability evaluation of 80 percent effective February 23, 2018. 2. The record evidence shows that, on February 4, 2021, the Veteran submitted a VA Form 21-686c, "Declaration of Status of Dependents," which identified A. N. H. as his spouse. 3. The record evidence shows that, on March 17, 2021, the Veteran submitted a copy of his marriage certificate showing that he married A. N. H. on September 15, 2011. 4. The record evidence shows that the Veteran did not provide all necessary information to establish his entitlement to additional dependency compensation based on his marriage to A. N. H. within 1 year of the August 2018 rating decision which established compensation and rated a service-connected disability not less than 30 percent. CONCLUSION OF LAW The criteria for an earlier effective date than February 4, 2021, for an award of additional dependency benefits for A. N. H., the Veteran's spouse, have not been met. 38 U.S.C. §§ 1115, 5107, 5110; 38 C.F.R. §§ 3.57(a), 3.400, 4.401(b), 3.503, 3.667. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had multiple periods of active and inactive U.S. Army Reserve service, including from October 2007 to October 2008 and from April 2011 to May 2012. He served in combat in Iraq in support of Operation Iraqi Freedom, in combat in Afghanistan, and in support of Operation Enduring Freedom. The rating decision on appeal was issued in February 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board only may consider the evidence of record at the time of the February 2021 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that Board not required to address issues unless specifically raised by claimant or reasonably raised by record evidence). The Board is not persuaded that the evidence supports granting the claim of entitlement to an earlier effective date than February 4, 2021, for an award of additional dependency benefits for A. N. H., the Veteran's spouse. The Veteran essentially contends that he is entitled to an earlier effective date of February 23, 2018, for an award of additional dependency benefits because he has been married to A. N. H. since September 2011 and February 23, 2018, is the date that he met some of the eligibility criteria for additional dependency benefits for his spouse. The Board disagrees. Contrary to the Veteran's lay assertions, the record evidence shows that he did not provide all necessary information to establish his entitlement to additional dependency compensation based on his marriage to A. N. H. within 1 year of the August 2018 rating decision which established compensation and rated a service-connected disability not less than 30 percent. As noted above, in a rating decision dated on August 11, 2018, and issued to the Veteran and his service representative on August 16, 2018, the AOJ granted service connection for obstructive sleep apnea, assigning a 50 percent rating effective February 23, 2018, and for PTSD, assigning a 50 percent rating effective February 23, 2018. This resulted in an overall disability evaluation of 80 percent effective February 23, 2018. The AOJ notified the Veteran in the August 2018 rating decision cover letter that he was being paid as a single Veteran with no dependents. Specifically, this letter stated: Your combined evaluation is 30 percent or more disabling; therefore, you may be eligible for additional benefits based on dependency. We may be able to pay you retroactive benefits for your dependents if you submit your dependency claim within a year from the date of this letter. If you wish to notify us of your dependents, please do so through eBenefits, an electronic resource in a self-service environment. Use of these resources often helps us serve you faster! Just visit www.eBenefits.va.gov to enroll and submit your dependency information. (Emphasis in original.) As also noted above, on February 4, 2021, the Veteran submitted a VA Form 21 686c, "Declaration of Status of Dependents," which identified A. N. H. as his spouse. The AOJ added A. N. H. to the Veteran's disability compensation award and notified him of this action in a letter dated on February 4, 2021. The AOJ notified him that A. N. H. was added to his award effective March 1, 2021. The AOJ also notified him that March 1, 2021, was the appropriate effective date for these awards of additional dependency benefits because that was the first day of the month following receipt of all of the required information concerning his relationship with his reported dependents and when he met the eligibility requirements for additional dependency benefits. In statements on his March 2021 VA Form 10182, the Veteran asserted that he married his spouse in 2011 and the effective date of adding her to his VA disability compensation award should be February 13, 2018, which was the same date as the date of receipt of his original VA disability compensation claim. He also stated, "Retroactive pay should be issued for months not paid [and] the correct amount dating back to 2/13/18, the original claim date." He attached a copy of his marriage certificate to his VA Form 10182 showing that he married A. N. H. in September 2011. The Board does not doubt the validity of the Veteran's marriage to A. N. H. The record evidence shows that he clearly was put on notice by the terms of the August 2018 rating decision itself that, because his combined VA disability evaluation was 30 percent or higher, he was eligible for additional dependency benefits. He also was put on notice by the August 2018 rating decision that he could be paid additional dependency benefits if he submitted a valid claim within 1 year of this rating decision. He did not submit the necessary information to establish entitlement to additional dependency benefits for his spouse until February 2021, approximately 312 years later, when he filed his VA Form 21-686c. He does not contend - and the record evidence does not show - that he submitted any information regarding his spouse between August 2018 and February 2021. Neither the Veteran nor his service representative has explained why he waited approximately 3 12 years before providing information requested by VA concerning his entitlement to additional dependency compensation. The Board presumes that, if he had submitted information regarding his dependents within 1 year of the August 2018 rating decision, the AOJ would have associated any information received with his claims file. See Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (presumption that VA properly discharged its duty to associate with a Veteran's claims file any documentation of a claim for benefits which it receives). The Board notes here that 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. Specific rates are provided for a Veteran's spouse and children. 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. 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," it still required that proof of dependent status be submitted within one year of notice of rating action. Id. Dependent compensation benefits ultimately were awarded to the appellant in Sharp on the effective date of the applicable rating increase. Disposition of the Veteran's appeal here is controlled by Sharp. The Court in Sharp found persuasive that the appellant in that case (the Veteran's surviving spouse) submitted a claim for additional dependency compensation within 1 year of the rating decision which resulted in a grant of increased (or additional) VA disability compensation. Here, it is undisputed that the August 2018 rating decision resulted in a grant of service connection for obstructive sleep apnea and PTSD and an overall combined disability evaluation of 80 percent. In other words, the Veteran had 1 year from the date of the August 2018 rating decision in which to submit the necessary information to establish his entitlement to additional dependency compensation for his spouse. Although the Court held in Sharp that "multiple rating decisions...[can] establish entitlement to additional dependency compensation," proof of dependents must be submitted within 1 year of notice of the rating action related to a Veteran's claim for additional dependency compensation. Id. Here, the Veteran does not contend - and the evidence does not show - that he submitted proof of A. N. H., his dependent spouse, within 1 year of the notice of the August 2018 rating decision which established entitlement to disability compensation and rated his service-connected disabilities at least 30 percent disabling. The August 2018 rating decision also was not appealed and became final. See also 38 C.F.R. §§ 20.302, 20.1103. The Board observes that the February 4, 2021 rating decision challenged on appeal did not assign an effective date for any increased (or additional) VA disability compensation as is necessary to consider entitlement to additional dependency compensation under Sharp. The AOJ instead assigned an effective date of February 4, 2021, for the award of additional dependency compensation for the Veteran's spouse in this appeal by relying on the date of receipt of the Veteran's VA Form 686c rather than linking the effective date of this additional dependency compensation to a service-connected disability. The Board next observes that there were additional rating decisions issued within 1 year of the Veteran's submission of his VA Form 21-686c in February 2021 which established entitlement to additional VA disability compensation. These subsequent rating decisions do not establish entitlement to an earlier effective date than February 4, 2021, for additional dependency compensation for the Veteran's spouse because she already had been added to his disability compensation effective February 4, 2021. And the effective date for the disabilities adjudicated in the subsequent rating decisions issued within 1 year of February 4, 2021, is March 12, 2021, which is later than the current effective date of the additional dependency compensation which the Veteran receives for his spouse. The Board again does not doubt the validity of the Veteran's marriage. His argument essentially rests on an assertion that it is inequitable for VA not to assign him an earlier effective date that February 4, 2021, for the award of additional dependency compensation because his marriage to A. N. H. occurred prior to the date that he was awarded VA disability compensation. Unfortunately, although sympathetic to the Veteran, the Board is bound by the law and regulations and has no authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Court has 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). And the record evidence does not support assigning an earlier effective date than February 4, 2021, for the award of additional dependency benefits for A. N. H. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than February 4, 2021, for the award of additional dependency benefits for A. N. H. The appeal is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.