Citation Nr: A25035484 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 230921-377952 DATE: April 17, 2025 ORDER Entitlement to an effective date prior to August 19, 2022, for the award of additional compensation benefits for the Veteran's spouse, S., and stepchild, L., is denied. FINDING OF FACT The Veteran did not submit the information requested by VA concerning S.'s marital history until August 2022. CONCLUSION OF LAW The criteria for an effective date prior to August 19, 2022, for the award of additional compensation benefits for the Veteran's spouse, S., and stepchild, L., have not been met. 38 U.S.C. §§ 1115, 5110; 38 C.F.R. §§ 3.4, 3.204, 3.401. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from April 1977 to April 1985. This case comes before the Board of Veterans' Appeals on appeal from an April 2023 decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ) in this matter. In the September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 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. Entitlement to an effective date prior to August 19, 2022, for the award of additional compensation benefits for the Veteran's spouse, S., and child, L. 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). Here, the Veteran has been in receipt of a total combined 100 percent rating since March 2003. As such, the threshold criteria of a minimum 30 percent disability rating for basic entitlement to additional payment for dependents have been met. 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). 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. 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). A "spouse" is defined for VA purposes as a person whose marriage to the veteran is valid under the law of the place where the parties resided at the time of the marriage, or the law of the place where the parties resided when the right to benefits accrued. 38 C.F.R. §§ 3.1(j), 3.50(a). Marriage is established by one of the following types of evidence: (1) copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record; (2) official report from service department as to marriage which occurred while the Veteran was in service; (3) the affidavit of the clergyman or magistrate who officiated; (4) the original certificate of marriage, if VA is satisfied that it is genuine and free from alteration; (5) the affidavits or certified statements of two or more eyewitnesses to the ceremony; (6) in jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship (this evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived); or (7) any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. 38 C.F.R. § 3.205(a). Current law allows that VA will, with certain exceptions, accept the statement of a claimant as proof of marriage, dissolution of a marriage, or death of a dependent. See 38 U.S.C. § 5124; 38 C.F.R. § 3.204(a)(1). Such statements should, in pertinent part, include the following details: (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and (3) the social security number of any dependent for whom the claimant is seeking benefits. In the absence of conflicting information, proof of marriage that meets the requirements of 38 C.F.R. § 3.205 together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior marriage may be accepted as establishing a valid marriage, provided that such facts, if they were to be corroborated by record evidence, would warrant acceptance of the marriage as valid. 38 C.F.R. § 3.205(b). However, VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. 38 C.F.R. § 3.204(a)(2). Where it is necessary, due to conflicting evidence in the record, to determine if a prior marriage was dissolved, proof of termination of a prior marriage can be shown by proof of death or a certified copy or certified abstract of a final decree of divorce or annulment specifically reciting the effects of the decree. 38 C.F.R. § 3.205(b). In this case, by way of background, the Veteran submitted in April 2013 a VA Form 21-686c Application Request To Add And/Or Remove Dependents on which he reported that he was married to V. In a September 2013 letter, VA notified the Veteran that V. was added to his award of disability compensation effective May 1, 2013. Later, in February 2016, the Veteran submitted a VA Form 21-686c listing three stepchildren, including L., who was born on [REDACTED], 2007. In a May 2016 letter, VA notified the Veteran that his stepchildren were added to his award effective March 1, 2016, and that he was being paid as a Veteran with four dependents. In a September 2018 letter, VA notified the Veteran that the award of additional compensation for his stepchildren was erroneous because the birth certificates he had submitted did not show that his spouse, V., was the birth mother of the children. Therefore, VA proposed removing them from his award effective March 2016. An October 2018 Report of General Information indicates the Veteran called VA to explain that V. was no longer his spouse, as they divorced on August 17, 2014, and that he married his current spouse, S., in February 2015, and the stepchildren were S.'s biological children. On the same day, the Veteran submitted a VA Form 21-686c listing S. as his spouse. This time, he reported that he and V. divorced on February 16, 2014, and that he married S. on February 22, 2015. Several weeks later, in an October 2018 letter, VA informed the Veteran that he did not provide a complete history of the previous marriages of his spouse, S., and requested that the Veteran submit another VA Form 21-686c listing a complete marital history for S. VA asked for this information because S.'s children's birth certificates showed multiple last names for S., but only her marriage to the Veteran was listed on the VA Form 21-686c submitted in October 2018. In November 2018, the Veteran submitted a copy of a marriage certificate showing that he and S. married on February 22, 2016. Also included was a marriage license application showing that the Veteran had a prior marriage that ended in divorce in 1992, and that S. had a prior marriage that ended in divorce in 2013. In a December 2018 letter, VA informed the Veteran that the information he had provided concerning his prior marital history was inconsistent and requested that he submit certified copies of the public record of termination for each of his prior marriages. In a January 2019 letter, VA notified the Veteran that it had conflicting information concerning his divorce from V., and that it was proposing to remove V. from his award effective April 16, 2013, the last time she was verified. A June 2019 Report of Contact indicates that VA called the Veteran concerning his dependency claim. The Veteran explained that he divorced V. on August 17, 2014, and never received a divorce decree. He stated that his current wife, S., had previously been married, but he did not have information about the prior marriage at the moment. The Veteran was told he would be provided another VA Form 21-686c to complete to add S. as his spouse. In a June 2019 letter, VA notified the Veteran that V. was removed from his award effective August 17, 2014, the date of their divorce. Shortly thereafter, also in June 2019, the Veteran submitted another VA Form 21-686c on which he listed S.'s prior marriage and indicated that it ended in divorce in March 1999. He also submitted information to add his stepdaughter, L. In an August 2019 letter, VA requested clarification of S.'s marital history given inconsistencies in the information provided to VA to date. VA outlined the inconsistencies and instructed the Veteran on the specific information needed. VA also requested that the Veteran clarify his own marital history and provided a blank VA Form 21-686c for him to fill out "completely and correctly." VA informed the Veteran that it may make a decision on his claim if he did not respond within 30 days. In a September 2019 letter, VA again notified the Veteran that additional benefits were erroneously awarded for his three stepchildren and that because he had not submitted the required documentation to establish S. as his spouse, it was proposed that they be removed from his award effective March 1, 2016, the date they were originally added. Later, in another September 2019 letter, VA notified the Veteran that it could not pay for S. as a dependent because not all required elements were met; specifically, the Veteran had not provided a history of his previous marriages. VA informed the Veteran that to add S. to his award, he must submit a divorce decree for his prior marriage to V.; a copy of S.'s divorce decree from her prior spouse, T.G.; and clarify marriage and divorce information relative to his request to add L. as a dependent stepchild. The letter was re-mailed to the Veteran in November 2019 after it was returned as undeliverable. In a December 2019 letter, VA informed the Veteran that because he had not provided evidence that he had married his claimed stepchildren's biological mother, S., until October 2, 2018, that it had taken the proposed action and removed all three stepchildren effective March 1, 2016, but added L. to his award effective November 1, 2018. In January 2020, the Veteran submitted another VA Form 21-686c. This time, he wrote that his marriage to V. ended in divorce on February 16, 2014, and that S.'s marriage to T.G. ended on March 3, 1999. In a February 2020 letter, VA notified the Veteran that it still had not received the evidence requested in the September 2019 letter. VA informed the Veteran that the information concerning his and S.'s prior marital history was inconsistent and that he should submit certified copies of the public record of the termination for their prior marriages. VA also requested clarification as to the date of his marriage to S. Shortly thereafter, also in February 2020, the Veteran resubmitted a certified copy of the marriage certificate showing he married S. on February 22, 2016. In a March 2020 letter, VA requested that the Veteran furnish copies of divorce decrees terminating all marriages for him and his spouse. VA informed the Veteran that it may make a decision on his claim if he did not respond within 30 days. In an April 2020 letter, VA notified the Veteran that because he had not furnished copies of documents terminating his and S.'s prior marriages, his claim for additional compensation for S. as his spouse remained denied. Shortly thereafter, also in April 2020, the Veteran submitted a copy of a divorce decree showing that his marriage to V. ended in divorce in March 1992. The divorce decree listed the Veteran as the petitioner and V. as the respondent. The Veteran also resubmitted a copy of his marriage certificate to S. Days later, in an April 2020 letter, VA informed the Veteran that his dependency claim needed to be submitted on a standardized form and requested that he complete, sign, and return a VA Form 21-686c. The letter was returned as undeliverable. In March 2021, the Veteran submitted another VA Form 21-686c listing S. as his spouse. However, he provided no information concerning his or S.'s prior marriages. Shortly thereafter, in a March 2021 letter, VA informed the Veteran that he had not provided a complete history of his prior marriages, and that the information received concerning S.'s prior marital history was inconsistent. To resolve the inconsistencies, VA requested that the Veteran submit certified copies of the public record of the termination for each of his spouse's prior marriages. VA informed the Veteran that it may make a decision on his claim if he did not respond within 30 days. In an April 2021 letter, VA notified the Veteran it had received information showing his marriage to V. ended in March 1992 and proposed to reduce his benefit effective May 1, 2013, the date V. was originally added to his award. In a May 2021 letter, VA notified the Veteran that his dependent stepchild, L., was the biological child of his claimed spouse, S., and that because it had been unable to establish his relationship with S., L. should not have been added to his award. VA therefore proposed to remove L. from the Veteran's award effective October 2, 2018, the date L. was previously added to his award. VA informed the Veteran that he may submit evidence to show that L. should not be removed from his award, but that if no evidence was received within 60 days, L. would be removed from his award. In a June 2021 letter, VA notified the Veteran that S. could not be added to his award because he had not provided a history of his previous marriages. Additionally, he had not provided the complete marital history and dates of marriage and divorce and official documents for S. The letter informed the Veteran that VA may continue the processing of his dependency claim if it received a VA Form 20-0995, Decision Review Request: Supplemental Claim along with the requested information or evidence within one year from the date of the letter. However, the letter advised that if VA did not receive the VA Form 20-0995 and the requested information within one year, it would be unable to grant an earlier effective date for dependency for his dependents, and that dependency information submitted on any other prescribed VA form would be considered a new dependency claim. In an August 2021 letter, VA notified the Veteran that it was taking the action proposed in its May 2021 letter and removing L. from his award effective November 1, 2018. VA informed the Veteran that the addition of L. to his award in December 2019 was clearly and unmistakably erroneous, due solely to VA error, and it would therefore waive the debt created by the overpayment of benefits due to L. being on his award as a dependent stepchild from November 1, 2018, to August 1, 2021. In August 2022, the Veteran submitted a copy of S.'s divorce decree showing that her marriage to T.G. ended in divorce. The decree was signed by a judge on June 25, 2013, and was filed on July 16, 2013. Shortly thereafter, also in August 2022, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application contending that his stepchild, L., had been incorrectly removed from his award. He requested that S. and L. be added to his award and that he be awarded retroactive benefits. In a September 2022 letter, VA notified the Veteran that S. and L. were added to his award effective August 24, 2022, the date of receipt of his VA Form 20-0995, which was received greater than one year from the date of VA's prior decision. In a September 2022 statement in support of claim, the Veteran contended that COVID-related challenges made it difficult to contact and work with the appropriate parties needed to submit his dependency claim. He noted that due to an error, he was approved for dependent benefits in May 2016, and that he was trying to get back pay and clear any debt caused by a prior VA decision in 2019. Shortly thereafter, also in September 2022, the Veteran submitted another VA Form 20-0995 Supplemental Claim Application on which he cited the September 2022 VA notification letter and expressed disagreement with the effective date assigned for the award of additional dependent benefits for L. and S. He contended that he was approved for benefits in May 2016. In an October 2022 letter, VA notified the Veteran that it was confirming the August 24, 2022, effective date of the addition of his spouse, S., and his stepchild, L. to his award of disability benefits. VA reiterated that an earlier effective date was not warranted because the VA Form 20-0995 was received more than one year after VA's prior decision on the matter. In February 2023, the Veteran submitted another VA Form 20-0995 Supplemental Claim Application on which he listed the issue as "[e]arlier effective date for addition of dependents" and cited the October 2022 VA notification letter. In an attached statement, the Veteran contended that he continuously prosecuted the claim since 2016, and that he was unable to get S.'s divorce decree until August 2022 because of COVID and the closure of the courthouse. He asked that VA "take into account the extreme difficulties COVID created for trying to get records" and grant an earlier effective date for the addition of S. and L. to his award. In the April 2023 decisional letter on appeal, VA notified the Veteran that August 19, 2022, was the proper effective date for adding S. and L. to his award because that was the date VA received the divorce decree for S.'s previous marriage. VA explained that "[t]here were multiple attempts throughout the years requesting information from him about his previous marriages, as the information was consistent." VA acknowledged the Veteran's contention that he could not get the divorce decree due to COVID, but it noted that it had sent the denial letter for S. in June 2021 and had not received a request from the Veteran for an extension within one year of that decision; therefore, S. and L. could be added only when VA received the required information. After careful review of the record, the Board finds that an effective date prior to August 19, 2022, for the award of additional disability compensation benefits for the Veteran's spouse, S., and stepchild, L. is not warranted. For years, the Veteran provided inconsistent or misleading information concerning his and S.'s respective marital histories. For instance, he provided misleading information concerning his marriage to V., whom he claimed as a dependent spouse in April 2013. He later called VA to report that he and V. divorced in August 2014 then submitted a VA Form 21-686c on which he wrote that they divorced in February 2014. Later, in April 2020, he submitted a divorce decree showing that they actually divorced back in March 1992. Further, the Veteran consistently provided inconsistent information regarding the marital history of his current spouse, S. When he initially claimed her as his spouse on his October 2018 VA Form 21-686c, he did not list any prior marriages for her. VA was prompted to request S.'s complete marital history when it discovered that she had different surnames on her children's birth certificates, which the Veteran had provided to VA in claiming the children as dependents. In response to this request, the Veteran submitted a copy of their marriage certificate as well as a marriage license application indicating that the Veteran had a prior marriage that ended in 1992, and that S. had a prior marriage that ended in 2013. At the time, this conflicted with the date of divorce the Veteran had reported to VA for V. VA again asked for complete marital histories for the Veteran and S. In June 2019, the Veteran submitted another VA Form 21-686c on which he listed S.'s prior marriage and indicated that it ended in divorce in March 1999. In August 2019, VA notified the Veteran that this was inconsistent with information provided to VA to date and again requested complete and correct information regarding his and S.'s marital history. Later, in September 2019, VA requested a copy of S.'s divorce decree. In January 2020, the Veteran submitted a VA Form 21-686c which again contained conflicting information about his and S.'s prior marriages. In March 2020, VA requested that the Veteran furnish copies of divorce decrees terminating all marriages for him and S. In April 2020, the Veteran submitted a copy of the March 1992 divorce decree documenting his divorce from V. In March 2021, he submitted another VA Form 21-686c listing S. as his spouse but no information concerning his or S.'s prior marriages. In March 2021, VA again requested copies of the public record of the termination for S.'s prior marriages and gave him 30 days to respond. In a May 2021 letter, VA proposed to remove L. as his dependent stepchild because his relationship with S. had not been established. On June 4, 2021, VA notified the Veteran that S. could not be added to his award because he had not provided the complete marital history and dates of marriage and divorce and official documents for S. On August 11, 2021, VA notified the Veteran that it was removing L. from his award. The Board notes that the Secretary has authority to prescribe the nature and extent of the proof required in order to establish a right to VA benefits, and if requested information necessary to complete an application for benefits is not received by the Secretary within one year from the date such notice, no benefit may be paid. See 38 U.S.C. §§ 501, 5102(c). In this case, given the conflicting evidence of record, VA was within its prescribed authority to conduct due diligence and request a copy of S.'s divorce decree regarding her marriage. Ultimately, it was not until August 19, 2022, more than one year after VA notified the Veteran that S. could not be added to his award, and that L. was being removed from his award, that VA received a copy of the divorce decree documenting S.'s divorce from her prior spouse, followed by the Veteran's Supplemental Claim on August 24, 2022. As previously discussed, 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). Here, VA added S. and L. to the Veteran's award effective August 24, 2022, the date of receipt of his supplemental claim. This was more than one year after the June 4, 2021, VA letter notifying the Veteran that S. could not be added to his award and more than one year after the August 11, 2021, VA letter notifying the Veteran that it was removing L. from his award. The Veteran had consistently failed to provide the information requested by VA to add S. and L. prior to those dates. In this regard, the Board notes that the "duty to assist is not always a one-way street" and the Veteran is obliged to cooperate in the development of the pending claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The June 2021 and August 2021 decisional letters concerning the Veteran's claim for additional dependent benefits for S. and L. became final. An effective date prior to August 24, 2022, for the award of additional disability compensation for S. and L. is not warranted. In reaching this conclusion, the Board acknowledges the Veteran's representative's argument that VA failed in its duty to assist by not asking for proof of S.'s previous divorce until 2018, particularly given that it had erroneously added her children to the Veteran's award at an earlier date. However, the Veteran did not report S. as his spouse until 2018. As discussed at length above, VA requested S.'s complete marital history because there was conflicting information in the record regarding whether she had any prior marriages. Given this conflicting information, it was reasonable for the RO to determine that a copy of S.'s divorce decree was necessary to verify her eligibility as a dependent spouse of the Veteran. See 38 C.F.R. § 3.204(a)(2). The Board also acknowledges the Veteran's contention, and that of his representative, that the circumstances of the COVID-19 pandemic prevented him from obtaining the documents VA had requested in connection with his claim. In this regard, an extension of a time limit may be granted for good cause, such as the COVID-19 pandemic, when an extension is requested after expiration of a time limit, and when the action is taken concurrent with or prior to the filing of a request for extension of the time limit and if good cause was shown why the required action could not have been taken during the original time period. See 38 C.F.R. § 3.109(b); April 2020 VBA Policy Letter 20-02. Here, there is no evidence the Veteran ever requested such an extension or indicated to VA that he had attempted to obtain the requested information or submit a completed claim form and was unable to do so due to the COVID-19 pandemic. Moreover, VA first requested a copy of S.'s divorce decree in September 2019, prior to the COVID-19 pandemic. While the Veteran's representative contends that the Veteran "acted in good faith since 2016 in providing the information requested by the VA to the best of his knowledge and capability," the weight of the probative evidence, detailed at length above, shows that the Veteran consistently provided inconsistent information concerning his and S.'s marital histories for years before finally submitting the information requested by VA in August 2022. This was more than one year after VA notified him that S. could not be added to his award, and more than one year after VA notified him that L. would be removed from his award. Therefore, an effective date prior to August 24, 2022, for the award of award of additional compensation benefits for the Veteran's spouse, S., and stepchild, L., must be denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.